.  INTERNATIONAL  LAW 

APPLIED   TO    THE 

RUSSO-JAPANESE    WAR- 

WITH 

THE  DECISIONS  OF  THE   JAPANESE 

PRIZE   COURTS 

BY 

SAKUYE    TAKAHASHI     V 

MEMBER  OF  THE  I.   J.   ACADEMY;    LL.D.    (HOGAKUHAKUSHl) 

PROFESSOR  OF  INTEENATIONAL  LAW  IX  THE  IMPERIAL  UXIVEESITY  OF  TOKYO ; 

FOEMER    PEOFESSOE    OF    THE    I.  J.   XAVAL   STAFF    COLLEGE;    VICE-PEESI- 

DEXT  OF  THE  IXTEEXATIOXAL  LAW  ASSOCIATIOX,  LOXDOX ;   LEGAL 

ADVISEE     TO     THE     JAPAXESE     FLEET    DUEIXG    THE    CHIXO- 

JAPAXESE  WAR;    MEMBER   OF    THE    LEGAL    COMMITTEE 

IX  THE   I.  J.  DEPARTMEXT  FOR  FOREIGX  AFFAIRS 

DURIXG    THE    RUSSO-JAPAXESE    WAR;     AXD 

THE  AUTHOR  OF  THE  "  CASES  OX  IXTER- 

XATIOXAL     LAW    DURIXG    THE 

CHIXO- JAPAXESE  WAR" 


(ENGLISH  EDITION) 


LONDON 

STEVENS     AND     SONS,    LIMITED 

119-120     CHANCERY     LANE 

LAW    PUBLISHERS 

1908 


Copyright,  1908,  by 
SAKUYE    TAKAHASHI 


PRINTED  AT  THE  TROW  PRESS,  NEW  YORK,  U.  S.  A. 


PREFACE. 


The  Eusso-Japanese  War  is  significant  as  one  of  the  most 
important  events  the  world  ever  witnessed.  Especially  is  it  an 
epoch-making  event  in  the  evolution  of  International  Law. 
This  war,  in  fact,  has  afforded  innumerable  cases  that  illus- 
trate almost  every  article  of  The  Geneva  and  The  Hague  Con- 
ventions relating  to  Laws  and  Customs  of  Land  and  Naval 
Warfare,  and,  furthermore,  has  presented  cases  without  prece- 
dents, suggesting  the  desirability  of  a  thorough  revision  of  the 
present  laws. 

International  Law  may  be  studied  in  two  different  ways; 
namely,  the  inductive  method,  which  discovers  principles  from 
accumulated  facts ;  or  the  deductive  method,  which,  after  estab- 
lishing certain  principles,  collects  facts  necessary  to  maintain 
them.    In  my  present  treatise  I  have  made  use  of  both  methods. 

Headers  are  cautioned  against  regarding  this  work  as  being 
too  descriptive.  It  has  been  my  aim  to  avoid  theoretical  con- 
troversies on  all  principles  generally  agreed  to  be  correct.  In 
such  cases  I  have  merely  quoted  the  facts  relating  to  these 
principles,  and  intentionally  refrained  from  making  many  foot- 
notes reciting  authorities. 

Every  specialist  on  International  Law  has  been  called  upon  to 
express  his  views,  so  as  to  aid  as  much  as  possible  in  the  solution 
of  such  problems  as  the  establishment  of  hospital  liners  in 
the  blockaded  ports,  the  disarmament  of  belligerent  warships 
and  internment  of  belligerents  in  neutral  ports,  the  destruction 
of  captured  merchantmen,  the  relation  of  the  support  of  pris- 
oners to  their  employments,  etc.,  all  of  which  questions  have 
heretofore  been  either  inadequately  treated  or  not  referred  to. 
I  have  never  hesitated  to  publish  my  personal  opinions  on  these 
problems,  expecting  that  they  might  be  freely  criticised. 


256006 


VI  PREFACE. 


On  the  commencement  of  the  war,  Dr.  Terao,  Dr.  Xama- 
mura,  and  myself — three  of  the  seven  advocates  for  war — were 
commissioned  by  the  Department  for  Foreign  Affairs  to  make 
certain  investigations, '  and  to  answer  various  important  ques- 
tions during  the  course  of  hostilities.  One  year's  experience 
in  such  a  position,  together  with  three  years  of  study  on  the 
subject,  has  enabled  me  to  become  fully  acquainted  with  every 
detail  of  the  international  contest,  and  it  is  not  from  a  desire 
for  personal  glory,  but  from  a  sense  of  duty  that  I  have  com- 
piled the  present  treatise. 

Some  years  ago  I  published  a  volume  entitled  "  Cases  on 
International  Law  during  the  Chino-Japanese  War."  This 
was  after  I  had  served  as  legal  adviser  to  the  Commander- 
in-Chief  of  the  Japanese  Fleet  during  that  conflict.  In  the 
former  treatise  I  refrained  from  discussing  matters  pertaining 
to  the  war  on  land,  because  I  was  not  in  a  position  to  do  the 
work  thoroughly.  In  the  present  volume  I  have  included  all 
matters,  both  naval  and  military,  which  occurred  during  the 
late  war,  for  my  official  position  enabled  me  to  study  both 
branches.  Now  I  am  permitted  to  publish  what  I  believe  will 
be  a  material  aid  to  the  study  of  Diplomacy  and  International 
Law. 

I  hereby  acknowledge  the  fact  that  I  am  under  obligation 
to  Messrs.  W.  M.  Vories,  M.  S.  Vail,  P.  B.  Waterhouse,  H.  B. 
Schwarz,  Ch.  E.  McPeek,  and  F.  A.  Mosher  for  kind  assistance 
in  correcting  my  English  and  in  reading  the  proof-sheets. 
Many  of  the  official  documents  which  appeared  in  the  Official 
Gazette,  Tokyo,  at  the  time,  and  which  have  been  incorporated 
in  this  treatise,  were  kindly  translated  by  Messrs.  H.  Kotani, 
Y.  Nakagawa,  T.  Chiba,  S.  Henmi,  and  so  on. 

Sakuye  Takahashi. 

On  the  10th  of  April,  1908, 
the  325th  Anniversary 

of  Hugo  Grotius'  birthday. 


CONTENTS. 

PART  I. 
THE  OUTBREAK  OF  WAR,  AND  ITS  EFFECTS. 


CHAPTER   I. 

The  Outbreak  of  War. 

PAGE 

Sect.     I.     General  statements .        .1 

Sect.    II.     The  Russian  protests  and  the  Japanese  answer      .        .        9 
Sect.  III.     A  personal  observation  on  the  Russian  declaration        .      14 
(1)  Data  concerning  the  outbreak  of  the  war.     (2)  Hos- 
tilities need  no  precursive  notice.     (3)  On  the  Rus- 
sian manifesto  concerning  Korea. 


CHAPTER   II. 

The  Protection  of  Subjects  of  One  Belligerent  and  Their 
Property  within  the  Territory  of  the  Other,  on  the 
Outbreak  of  War. 

Sect.     I.     The  days  of  grace  allowed  the  enemy's  subjects    .        .     26 
(1)  Japanese  attitude.     (2)  The  Russian  attitude. 

Sect.  II.  The  protection  of  Catholics  and  Catholic  Missionary 
Institutions  in  the  Far  East  by  the  Japanese  Govern- 
ment   38 

Sect.  III.  The  American  protection  of  Japanese  in  Russian  terri- 
tories   42 

(1)  The  withdrawal  of  the  Japanese  from  Vladivostock. 
(2)  From  Port  Arthur.  (3)  From  Odessa.  (4)  Through 
Europe. 

CHAPTER   III. 

Days    of    Grace    Allowed    the    Enemy's    Vessels    at    the 

Outbreak  of  War 59 

vii 


Vlll  CONTENTS. 


CHAPTER    IV. 

PAGE 

Effect   of   the   Outbreak   of   War   on   Foreigners   in   the 

Belligerent  States;  War  Taxes  on  Foreigners     .        .     70 


CHAPTER    V. 

Trading  with  the  Enemy,  and  Prohibition  of  the  Exporta- 
tion of  Goods  Suitable  for  Warlike  Purposes        .        .     82 


PART  II. 
LAWS  AND  CUSTOMS  OF  LAND  WARFARE. 


CHAPTER   I. 
Combatants. 


Qualifications  of  a  combatant ;  The  Japanese  principle  during  the 
Chino- Japanese  War,  and  the  Russo-Japanese  War;  Russian 
principles 89 

CHAPTER    II. 
Prisoners  of  War. 

Sect.        I.      Treatment  of  Prisoners.  .        .        .        .        .        .94 

(1)  Personal    investigation    by    Mr.    Smith,    U.    S. 

Vice-Consul   at    Moskow.     (2)  Treatment   of   the 

Russian  prisoners  in  Japan. 
Parole  necessary  for  free  outdoor  exercise  .        .        .107 

Prison  barracks 113 

Bureau  of  information  for  prisoners     .        .        .        .114 
Restoration   of  personal  property  left   by   Russian 

soldiers 118 

Postal  regulations 122 

Support  and  pay  of  prisoners  of  war    .        .        .        .   1 23 

Labour  of  prisoners  of  war 124 

Wearing  of  swords  by  prisoners 127 

Prisoner's  offences 129 

The  sick,  wounded  and  deceased  .        .        .        .132 

Crews  of  merchantmen 138 

Russians   in   medical   service,   non-combatants   and 

deceased 140 

Delivering  of  prisoners  of  war 142 

Prisoners  and  religion 146 


Sect. 

H. 

Sect. 

HI. 

Sect. 

IV. 

Sect. 

V. 

Sect. 

VI. 

Sect. 

VII. 

Sect. 

VIII. 

Sect. 

IX. 

Sect. 

X. 

Sect. 

XI. 

Sect. 

XII. 

Sect. 

XIII. 

Sect. 

XIV. 

Sect. 

XV. 

CONTENTS.  IX 


CHAPTER    III. 
The  Treatment  of  the  Killed. 

PAGE 

Baron  Suyematsu's  article  on  the  subject.  Regulations  for 
clearing  the  field  after  an  engagement,  and  for  burying  those 
who  have  been  killed,  or  have  died  of  disease     .        .        .        .148 

CHAPTER  IV. 

Means  op  Injuring  the  Enemy. 

Sect.    I.      False  accusations  of  the  Russian  Government  against 

the  Japanese  Army  refuted 155 

(1)  Concerning  the  Japanese  soldiers  firing  upon  a 
Russian  train  flying  the  Red  Cross  flag  near  Pulan- 
tien.  (2)  The  false  accusation  of  the  Japanese 
troops'  firing  upon  the  Russian  Red  Cross  flag.  (3) 
The  false  accusation  of  the  Japanese  troops'  firing 
at  the  Russian  Red  Cross  Hospital  in  Port  Arthur. 
(4)  The  report  that  Japanese  soldiers  abused  the 
Red  Cross  flag  in  a  conflict  near  Chong-ju.  (5)  The 
false  accusation  of  a  Russian  surgeon  treated  unjustly 
at  Tashichiao.  (6)  Slander  on  Japan's  treatment  of 
Russians  killed  and  wounded. 

Sect.  II.  Russian  breaches  of  the  rules  of  war  .  .  .  .163 
(1)  Cases  of  Russians'  firing  at  the  Japanese  field  hos- 
pitals. (2)  Russian  outrages.  (3)  The  use  of  dum- 
dum bullets.  (4)  The  wearing  of  Chinese  costumes 
by  the  Russian  Army;  an  example  of  Russian 
stratagem.  (5)  Violation  of  International  Law  by 
the  Russian  Army  in  Sakhalin. 


CHAPTER    V. 

Spies. 

Sect.    I.     Spy 185 

(1)  The  case  of  Casimil  Miaczyonski.  (2)  Chinese  spies. 
(a)  The  case  of  Chen,  the  magistrate  of  Liao-yang  and 
Wang  the  ex-magistrate  of  Haicheng.  (b)  The  case 
of  the  president  of  the  bureau  of  communication  at 
Mukden  and  fifteen  other  officers,  (c)  The  case  of  the 
magistrate  of  Kang-ping  prefectory.  (d)  A  Chinese 
spy  using  doves,     (e)  Case  of  Chang. 

Sect.  II.     Violation  of  regulations   concerning  the  protection  of 

military  secrets 190 


CONTENTS. 


CHAPTER    VI. 
Siege  and  Bombardments. 

PAGE 

Sect.     I.     Alleged  bombardment  of  hospitals  in  Port  Arthur         .  195 

Sect.    II.     Non-combatants  in  Port  Arthur 203 

Sect.  III.     The  German  officers  from  Port  Arthur     ....  206 

CHAPTER  VII. 
The  Capitulation. 

Sect.     I.     General  StoessePs  proposal  to  surrender          .        .        .  209 

.  210 

.  211 

.  215 

.  218 


Sect.    II.  Stoessel  communicates  with  the  Czar 

Sect.  III.  Terms  of  the  capitulation 

Sect.  IV.  The  transfer  of  the  forts      .... 

Sect.    V.  Russian  prisoners  at  Port  Arthur 

CHAPTER   VIII. 
Armistices. 

Sect.     I.  The  protocol  of  the  armistice     .        .        .        .        .        .219 

Sect.    II.  The  armistice  in  Manchuria 220 

Sect.  III.  The  armistice  at  Port  Arthur 221 

Sect.  IV.  The  naval  protocol  of  the  armistice  ....   222 

Sect.    V.  The  armistice  in  North  Korea 224 

CHAPTER    IX. 
The  Occupation  of  Sakhalin. 

Sect.     I.     Premeditated  plan  for  the  occupation  of  Sakhalin  Island  225 

Sect.   II.     Surrender  of  the  Sakhalin  Army 227 

Sect.  III.     The  military  administration  system        .        .  .229 

Instructions  to  military  administration  officers. 
Sect.  IV.     Treatment  of  the  population  of  the  occupied  territory  231 
(1)  Russian  civil  officers,  their  families  and  the  families 
of  military  officers  at  Sakhalin.     (2)  Russian  sub- 
jects.    (3)  Exiles,     (a)  Political  exiles,     (b)  Crimi- 
nals.     (4)  Priests. 
Sect.    V.     Public  and  private  properties  at  Sakhalin       .        .        .   239 

(1)  Forests.  (2)  Coal  mines.  (3)  Petroleum  fields. 
Sect.  VI.  Application  of  The  Hague  Convention,  Article  LVI  .  244 
(1)  Protection  of  orphanages.  (2)  Protection  of  charity 
hospitals.  (3)  Nowmihailovskoe  lunatic  asylum. 
(4)  Churches.  (5)  Schools.  (6)  Museums.  (7)  Pro- 
tection of  the  rights  of  the  inhabitants  of  Sakhalin 
Island. 


CONTENTS.  XI 


CHAPTER    X. 
The  Occupation  of  Manchuria. 

PAGE 

Sect.  I.  Principles  and  regulations  concerning  the  administra- 
tion of  the  occupied  territory  in  Manchuria.  The 
pre-arrangement  of  the  administration  of  the  occu- 
pied territory  in  Manchuria 250 

Sect.    II.     The  results  of  administration  in  the  occupied  territory 

of  Manchuria .   257 

Sect.  III.     Requisitions  and  booty 260 

Sect.  IV.     Private  properties  of  Russian  inhabitants         .        .        .   262 
Sect.    V.     Protection  of  historical  and  religious  buildings,  hospitals 

and  others 263 

Sect.  VI.     The   protection   of   subjects   of   the   other   Powers   in 

Manchuria 266 

(A)  An  example  relating  to  American  citizens.  (B)  An 
example  relating  to  British  subjects.  (C)  An  ex- 
ample relating  to  Austrian  subjects.  (D)  An  ex- 
ample relating  to  Italian  subjects.  (E)  An  example 
relating  to  Hollanders.    (F)  Protection  of  the  Chinese. 


PART  III. 
LAWS  OF  NAVAL  WARFARE. 


CHAPTER   I. 
The  Sinking  of  Merchantmen. 

Sect.     I.     The  sinking  of  Japanese  vessels 284 

(1)  The  sinking  of  the  Nakonoura  Maru.  (2)  The 
sinking  of  the  Goyo  Maru  and  the  Haginoura  Maru. 
(3)  The  sinking  of  the  Kinshiu  Maru.  (4)  The 
Okinoshima  disaster.  (5)  The  sinking  of  the  Seisho 
Maru  and  the  Koun  Maru.  (6)  The  sinking  of  the 
Jizai  Maru,  Fukuju  Maru,  Takashima  Maru,  Kaho 
Maru  and  Hokusei  Maru  No.  2.  (7)  The  sinking  of 
the  Japanese  sailing  ship  Hachiman  Maru  No.  3  and 
Hokusei  Maru  No.  1.  (8)  The  sinking  of  the  Keisho 
Maru.     (9)  The  sinking  of  the  Han-yei  Maru. 

Sect.    II.     The  sinking  of  neutral  ships 310 

(1)  The  sinking  of  the  Knight  Commander.  (2)  The 
sinking  of  the  German  S.  S.  Thea.  (3)  The  Hipsang 
incident.     (4)  Disaster  to  merchantmen  inflicted  by 


Xll  CONTENTS. 


PAGE 

the  descent  of  the  Baltic  fleet,    (a)  The  sinking  of  the 
St.  Kilda.     (b)  The  sinking  of  the  Ikona.      (c)  The 
destruction  of  the  Old  Hamia.     (d)  The  sinking  of 
the  Tetatos. 
Sect.  III.     An  observation  on  the  destruction  of  merchantmen   .        .310 


CHAPTER   II. 

Incidents  with  Bearing  on  Prize  Law. 

Sect.     I.     The  Daijin  Maru  incident 337 

Sect.    II.     The  Prometheus  case 340 

Sect.  III.     The  ships  for  scientific  exploration  towards  the  North 

Pole 353 

Sect.  IV.     The  Independent  affair 354 

Sect.    V.     Claims  for  damages  caused  by  capture    ....  355 
(1)  The  Crusader.     (2)  The  Eastry. 

CHAPTER    III. 

The  Blockade  op  the  Liaotung  Peninsula. 

Sect.     I.     Details  of  the  blockade 359 

Sect.   II.  Medicines  and  medical  stuffs  destined  for  Port  Arthur    361 

Sect.  III.  On  the  establishment  of  a  hospital  liner         .        .        .370 

Sect.  IV.     Blockade  runners 371 

Sect.    V.  A  legal  problem  involved  in  the  blockade  of  Lyao-Tung  373 

CHAPTER   IV. 

Concerning  Floating  Hospitals. 

Sect.     I.     Negotiations  about  Japanese  floating  hospitals    .        .375 
Sect.    II.     Opinions  of  the  master  and  chief  physicians  of  hospital 
vessels,  in  question  relating  to  The  Hague  Conven- 
tion   for    the    application    of    The     Geneva    Con- 
vention to  maritime  warfare 376 

(1)  Reprehensibility  of  the  omission  of  Article  X. 
(2)  How  to  make  a  hospital  ship  recognisable  by 
night.  (3)  Is  there  any  need  of  colouring  a  neutral 
hospital-ship  otherwise  than  green  or  red?  (4)  Is  it 
justifiable  for  a  hospital-ship  or  a  ship  not  a  hospital 
to  rescue  the  sick  and  wounded  by  venturing,  during 
the  battle,  into  the  place  of  combat?  Or  is  such 
conduct  to  be  allowed  only  after  the  battle?  (5)  The 
disposal  of  the  wounded  and  sick  received  on  a  neutral 
ship. 


CONTENTS.  Xlll 


CHAPTER   V. 

PAGE 

War  Correspondents   of   Foreign  Newspapers  and  Corre- 
spondents' Ships 386 


CHAPTER   VI. 
The  Coast  Bombardment. 

Bombardments  of  Kaiping  and  Kinchow;  Bombardments  of  Kai- 

ping  and  neighbourhood;  The  San-shan  Island  affair       .        .407 


PART  IV. 
NEUTRALITY. 


CHAPTER   I. 

Russian  Warships  in  Neutral  Ports. 

Sect.     I.     Russian  warships  at  Shanghai 418 

(1)  The    Mandjur    affair.     (2)  The    Askold    and    the 

Grozovoi    at    Shanghai.       (3)    The    Bodri    and    the 

Russian  transports. 

Sect.   II.     The  Russian  warships  at  Chefoo 437 

(1)  The  Ryeshitelni  affair.     (2)  The  Ratstoropny  affair. 

(3)  Russian  warships  which  escaped  into  Chefoo  after 

the  fall  of  Port  Arthur. 

Sect.  III.     Russian  warships  at  Kiaochow 447 

Sect.  IV.     Russian  warships  at  Manila 452 

Sect.    V.     The  Diana  at  Saigon  453 

Sect.  VI.     The  sojourn  of  the  Russian  auxiliary  cruiser  Lena  in  the 

harbour  of  San  Francisco 455 

Sect.  VII.    The  Terek  at  Batavia 457 

CHAPTER   II. 
The  Treatment  of  Belligerents  in  Neutral  Ports. 

Sect.     I.  General  observations 459 

Sect.    II.  Chemulpo  incidents 462 

Sect.  III.  Breaches  of  parole  by  Russian  officers     .        .  .467 

Sect.  IV.  The  Russian  torpedo-destroyer  Bluni  stranded  at  Wei- 

hai-wei 473 

Sect.    V.  The  Shanghai  murder  case 476 

Sect.  VI.  The  crew  of  the  Lena  at  San  Francisco    ....  482 


XIV  CONTENTS. 


CHAPTER    III. 
The  Sale  of  Vessels  by  Neutrals  to  Belligerents. 

PAGE 

Sect.     I.     Sale  of  warships  by  a  neutral  Government  to  a  belligerent  485 

Sect.  II.  Sale  of  war  vessels  from  neutral  firms  to  a  belligerent  487 
Sect.  III.     Sale  of  vessels  other  than  war  vessels  from  neutral 

firms  to  a  belligerent  State 488 

Sect.  IV.     Sale  of  merchantmen  by  neutral  subjects  to  belligerent 

subjects      .        . 488 

CHAPTER   IV.     . 
Contraband  of  War. 

The  Japanese  attitude 490 

The  Russian  attitude           .        .        .        .'       .        .        .  495 

The  bean-cake  question 515 

About  rice 520 

About  tea .        .        .520 

About  kerosene  oil 523 

Sect.  VII.    About  cotton 524 


PART  V. 

NEW  CASES  ON  PRIZE  LAW  ADDED  BY  THE  DECIS- 
IONS OF  THE  JAPANESE  PRIZE  COURTS. 


Sect. 

I. 

Sect. 

II. 

Sect. 

III. 

Sect. 

IV. 

Sect. 

V. 

Sect. 

VI. 

CHAPTER    I. 
General  Statements. 

Sect.     I.     Japanese  Prize  Court  Regulations  and  organisation  of 

the  Japanese  Prize  Courts 527 

Sect.   n.     Vessels  captured  by  the  Japanese  Navy  .  .537 

Sect.  III.     Japanese  principles  concerning  prize  cases       .        .        .  539 

I.  Petition  by  a  party  not  interested 539 

Case  I.  The  Manchuria 539 

Case  II.     The  Mukden 541 

II.  Petition  by  an  advocate  other  than  a  counsellor-at-law 

of  Japan 543 

Case.     The  Mukden 543 

m.     Petition  by  telegraph 544 

Case  I.     The  Manchuria 544 

Case  II.     The  Resnik 549 

Case  III.     The  Manchuria 551 


CONTENTS.  XV 


PAGE 

IV.     Petition  to  establish  prior  right  against  the  vessel         .   551 

Case.     The  Nigretia 551 

V.     Petition  for  the  release  of  the  vessel;  establishment  of 

prior  right  or  payment  of  claim 557 

Case.     The  Russia       .        , 557 

VI.     Petition  for  temporary  attachment  of  the  prize     .        .    559 

Case.     The  Mukden 559 

VII.     Petition  in  any  language  other  than  Japanese       .        .    562 

Case  I.     The  M.  S.  Dollar 562 

Case  II.     The  Mukden 563 

VIII.     Several  other  principles 563 

Sect.  IV.  Procedure  of  cases  in  the  Japanese  Prize  Courts  .  .  565 
(1)  Reception  of  case.  (2)  Examination  of  crews  and 
passengers.  (3)  Inspection  of  goods.  (4)  Inspec- 
tion of  letters,  landing  of  crews  and  passengers  and 
the  reception  of  visitors  by  the  crews  and  passengers. 
(5)  Release  of  crews  and  passengers.  (6)  Advertise- 
ment of  vessels  and  cargoes.  (7)  Trial  and  decision. 
(8)  Fees  and  stamps.  (9)  Execution  of  decisions. 
(10)  Returning  ship's  papers. 

CHAPTER    II. 
Enemy  Vessels. 

Sect.     I.     Russian  vessels 574 

Case     la.    The  Argun 574 

Case     lb.    The  cargo  of  the  Argun  .        .        .        .576 

Case      II.    The  Bobrick 580 

Case    III.    The  Ekaterinoslav 582 

Case     IV.    The  Juriady ,        .591 

Case      V.    The  Kotic 593 

Case     VI.    The  Lesnik 595 

Case   VII.    The  Manchuria 596 

Case  VIII.    The  Mukden 598 

Case     IX.    The  Nadajda     .                         .        .        .        .   604 
Case      X.    The  Thalia 605 

Sect.   II.     Vessels  that  assisted  hostile  operations  of  the  enemy    620 
Case.     The  Aryol 620 

Sect.  III.     Vessels  employed  by  the  hostile  Government  and  those 

navigating  with  the  enemy's  licence     ....   625 

Case   I.     The  Australia       .  625 

Case  II.     The  Montara 633 

CHAPTER    III. 

Vessels  Carrying  Contraband  Persons. 
Case.     The  Nigretia 639 


XVI  CONTENTS. 


Case 

I. 

Case 

II. 

Case 

III. 

Case 

IV. 

Case 

V. 

Case 

VI. 

Case 

VII. 

Case  VIII. 

Case 

IX. 

CHAPTER   IV. 
Vessels  Carrying  Contraband  Goods. 

PAGE 

The  Aphrodite  (British) 651 

The  Bawtry  (British) 659 

The  M.  S.  Dollar  (British)        .        .        .         .         .         .664 

The  Henry  Bolkow  (British) 671 

The  Lydia  (German) ..  671 

The  Scotsman  (British) 682 

The  Severus  (German) 692 

The  Tacoma  (American) 694 

The  Vegga  (Swedish) 703 

CHAPTER   V. 
Blockade  Runners. 

Case       I.     The  George  (French)           . 711 

Case      II.     The  Fuping  (German) 712 

Case     III.     The  Veteran  (German) 714 

Case     IV.     The  King  Arthur  (British) 721 

CHAPTER    VI. 

Un-neutral  Services. 

Case        I.     The  Industrie 732 

Case      II.     The  Quang-nam 735 

CHAPTER  VII. 

.    Released  Vessels. 

Sect.     I.     Vessels  released  by  the  decisions 739 

Case       I.     The  Eastry  (British) 739 

Case      II.    The  Rincluden  (British)           ....  741 

Case    III.    The  Shishan  (British) 742 

Case     IV.    The  Hsiping  (British) 745 

Case       V.    The  Saxon  Prince  (British)    .         .         .         .747 

Case     VI.    The  Peiping  (Chinese) 749 

Case   VII.    The  Aggi  (Norwegian) 750 

Case  VIII.    The  Helmes  (Norwegian)         ....  752 

Sect.  II.      Vessels  released  by  the  special  ordinance         .        .        .  753 

The  Hans  Wagner  (German) 753 

The  Kow-loon  (German) 754 

The  M.  Struve  (German)             754 

The  Arufried  (Norwegian) 754 

The  Barracouta  (American)            754 

The  Centennial  (American) 754 


CONTENTS.  XV11 


APPENDICES. 


PAGE 

I.      Speech  of  Baron  Komura  on  the  Manchurian  Question    .  755 

II.  The  memorandum  of  the  seven  professors           .        .        .  759 

III.  Diary  of  the  war  between  Japan  and  Russia    '.        .        .  761 

IV.  The  Treaty  of  Peace 774 

V.     Japanese  Regulations  Governing  Captures  at  Sea       .        .  778 

VI.     Complete  list  of  the  vessels  captured  by  the  Japanese 

Navy 794 


TABLES. 

I.  Table  showing  the  number  of  Japanese  subjects  in  Rus- 

sian territories  and  Manchuria  at  the  outbreak  of  the 
war 44-45 

II.  Table  showing  the  number  of  Russian  prisoners  living  in 

private  houses 108 

III.  Table  showing  the  locality  of  prison  barracks,  and  the 

separation  of  prisoners  according  to  religious  sect  .    114 

IV.  Table  showing  the  number  and  nature  of  articles  left  by 

Russian  deceased 121 

V.     Table    showing   the   sums   of    money   given   to    Russian 

prisoners 124 

VI.     Table  showing  the  offences  of  the  Russian  prisoners  and 

punishments  administered  by  Japan         ....   131 
VII.     Table  showing  the  number  of  released  prisoners  .         .        .    136 
VIII.     Table  showing  the  number  of  Russian  prisoners  given  ar- 
tificial limbs  and  eyes  . 136 

IX.     Table  showing  the  diseases  among  prisoners       .         .         .137 
X.     Table  showing  the  number  of  released  crews       .         .        .    139 
XI.     Table  showing  the  number  of  merchantmen  visited,  cap- 
tured, or  sunk  by  the  Russian  warships     .         .        .   275-283 
XII.     Table   showing  cases  of   claims  for  damages  caused   by 

capture 355 

XIII.  Table  of  the  Japanese  floating  hospitals     .         .        .        .375 

XIV.  Table  showing  Russian  warships  in  neutral  ports     .   417-418 
XV.     Table    showing    the    numbers    of    vessels    chartered    by 

Japanese  subjects 490 

XVI.     Table  showing  captured  vessels,  arranged  according  to 

nationality 537 

XVII.     Table  showing  condemned  vessels,  and  reason  for  con- 
demnation      538 


XV111  CONTENTS. 


PAGE 

XVIII.     Table  of  vessels  adjudicated  at  various  Prize  Courts  and 

the  Higher  Prize  Court 538 

XIX.     Table  showing  the  number  of  cases  tried  before  the  Prize 

Courts   • 538 

XX.     Table  showing  the  number  of  cases  tried  before  the  Lower 

Prize  Courts 538 

XXI.     Table  showing  the  number  of  appeals  taken  to  the  Higher 

Prize  Court 539 

XXII.     Table  showing  all  the  captured  vessels,  arranged  accord- 
ing to  the  date  of  captures 794 


PART  I. 

THE   OUTBREAK  OF  WAR,  AND 
ITS  EFFECTS. 


CHAPTER   I. 
THE    OUTBREAK    OF    WAR. 

Sect.  I.     General  Statements. 

Many  continental  writers  insist  upon  the  necessity  of  a 
declaration  of  war ; *  but  the  practice  of  states  during  the  last 
three  centuries  has  rarely  agreed  with  this  opinion,  and  there 
are  many  publicists,  especially  in  England  and  the  United 
States,  who  approve  of  this  practice.2 

By  referring  to  the  history  of  International  Law,  we  will 
find  several  stages  in  the  progress  of  opinion.3 

The  ancient  world  recognised  the  necessity  of  formal  decla- 
rations of  war,  the  Greeks  and  the  Romans  alike  being  wont 
to  so  declare  in  solemn  form  after  demand  and  refusal  of  satis- 
faction by  the  opponent;  the  declaration  was  publicly  conveyed 
by  a  herald,  whose  person  was  held  inviolable,  from  the 
offended  to  the  offending  state.  The  determination  of  the  for- 
malities proper  to  such  declarations  was  a  main  function  of 
the  Roman  Fetial  College,  and  the  principles  followed  were 
enshrined  in  the  Jus  Fetiale. 

The  Roman  war  practice  in  this  matter  lingered  after  the 
fall  of  the  Roman  Empire;  the  Roman  Church,  whose  faith 
subdued  the  barbarian  conquerors,  lent  its  sanction  to  the  cus- 
tom of  making  a  formal  challenge  to  the  foe,  which  well  har- 
monised with  the  proud  temper  of  the  warriors  of  the  North. 

I  Grotius,  III.,  C.  3,  §  6;  Vattel,  III.,  §  51;  Calvo,  IV.,  §  1907;  Bluntschli,  §  521; 
Fiore,  III.,  No.  1274;  Heffter,  §  120. 

2Bynkershoek,  Quaest.  Jur.  Publ.,  I.,  C.  2;  Kluber,  §238;  G.  F.  Martens,  §267; 
Gareis,  §  80;  Liszt,  §  39;  Ullmann,  §  145;  and  many  English  writers. 

3  Walker,  A  Manual  of  Public  International  Law,  pp.  104-105. 

1 


2  THE   OUTBREAK   OF   WAR.  [PART   I. 

Accordingly,  so  long  as  the  ideas  of  chivalry  held  sway  among 
men,  public  declarations  of  war  in  some  form  were  always 
issued  to  the  enemy  by  the  opponent  sovereign.  As  late  as 
1657  a  Swedish  herald  brought  a  declaration  of  war  to  the 
Court  of  Copenhagen. 

During  the  seventeenth  century,  however,  a  wide  divergence 
began  more  and  more  to  show  itself  between  the  statements  of 
legal  authority  and  the  facts  of  practice,  Grotius  and  his 
fellows  asserting  under  the  Law  of  Nations,  if  not  under  the 
Law  of  Nature,  the  necessity  of  a  formal  notice  being  given 
to  the  enemy  before  making  an  attack,  while  belligerents  habit- 
ually neglected  to  issue  such  notice,  although  commonly  excus- 
ing the  omission  on  some  special  grounds. 

Gustavus  Adolphus  declared  a  formal  notice  to  the  enemy  to 
be  necessary  in  the  case  of  a  defensive  war,  and  this  conven- 
ient distinction  commended  itself  alike  to  belligerents  and 
writers  in  certain  quarters.  The  practice  of  issuing  such  no- 
tices had  in  the  early  days  of  the  eighteenth  century  become 
almost  entirely  obsolete. 

In  December,  1881,  and  January,  1882,  the  Board  of  Trade 
in  England  sat  on  the  subject  of  Channel  Tunnel,  under  the 
chairmanship  of  Sir  T.  Farrer.1  In  the  course  of  the  proceed- 
ings of  that  committee,  Sir  T.  Farrer  asked  a  series  of  ques- 
tions, all  connected  with  the  point  raised  by  him,  in  the  fol- 
lowing words: 

"  Looking  upon  what  we  ourselves  remember,  is  it  probable  that  war 
would  be  declared  against  us,  as  it  were,  out  of  a  clear  sky,  without 
some  previous  strain  or  without  notice  that  a  quarrel  was  impending? 
Has  this  happened  in  any  single  case  within  the  last  50  or  100  years  ?  " 

To  ascertain  the  facts  on  this  subject,  Brevet-Lieutenant-Colonel 
J.  F.  Maurice  prepared  an  historical  abstract  of  cases  in  which  hos- 
tilities have  occurred  between  civilised  Powers  prior  to  declaration 
or  warning.     He  says: 

"The  question  has  been  raised  whether  a  country  living  in  peace 
with  all  its  neighbours  has  any  reason  to  fear  that  war  may  sud- 
denly burst   upon   it. 

1  J.  F.  Maurice,  Hostilities  without  Declaration  of  War;  Preface,  pp.  3-4. 


CHAP.  I.,  SECT.  I.]      GENERAL   STATEMENTS.  3 

"  Many  of  the  improvements  of  modern  science,  where  they  break 
down  the  natural  barriers  between  nations,  offer  facilities  to  an  in- 
vading army,  which  would  be  confessedly  dangerous  to  national  inde- 
pendence if  the  two  countries  whose  barriers  are  removed  or  pierced 
were  at  war. 

"  If,  however,  war  and  peace  are  really  separated  by  a  distinct 
line,  so  that  a  nation  at  peace  may  take  for  granted  that  which  would 
happen  if  it  were  at  war,  and  that  which  constitutes  war  cannot  pos- 
sibly involve  peace,  then,  before  war  can  take  the  place  of  peace,  a 
sufficient  time  must  be  given  during  which  the  necessary  changes  can 
be  made  to  suit  the  attendant  altered  conditions  of  life;  there  will 
be  no  reason  to  fear  lest  the  facilities  offered  to  kindly  neighbours 
should  become  the  means  of  aggression  for  bitter  foes. 

"  It  appears,  therefore,  to  be  of  some  importance  to  ascertain  his- 
torically whether  within  the  last  200  years  any  cases  have  occurred 
in  which  the  warning  of  coming  war  has  not  been  very  clear,  or  has 
not  been  given  long  beforehand.  For  it  is  not  safe  that  the  question 
should  be  left  to  be  determined  by  casual  impressions  and  chance  sur- 
mises ;  it  is  necessary  that  whatever  may  have  been  the  facts  in  the  past 
the  experience  of  modern  times  should  be  carefully  recorded.  The 
most  excellent  general  impressions  as  to  what  ought  to  be  the  mode 
of  procedure  by  which  statesmen  give  warning  before  they  make  war, 
will  not  be  an  adequate  security  for  the  freedom  of  a  kingdom. 
It  is  in  fact  true  that  under  the  excitement  of  popular  passion  or 
private  ambition,  rulers  of  armies  or  of  armed  nations  have  some- 
times disregarded  all  obligations  of  the  kind,  and  have,  in  the  midst 
of  profound  peace,  taken  advantage  of  the  confidence  of  their  neigh- 
bours. 

"  If  such  a  thing  has,  under  the  conditions  of  modern  times,  ever 
happened,  it  is  always  possible  that  it  may  happen  again.  Unless  na- 
tional life  and  security  are  to  be  seriously  imperilled,  provision  must 
be  made,  not  only  against  that  which  will  certainly  happen,  but 
against  any  danger  which  the  experience  of  the  past  shows  to  be 
among  the  chances  to  be  reckoned  with.  When  the  unexpected  blow 
has  once  fallen,  it  will  be  in  vain  to  plead  that  many  previous  years 
have  passed  during  which  nothing  of  the  kind  has  happened. 

"  It  is  to  clear  this  doubt  as  to  what  the  experience  of  the  past 
in  this  matter  has  been,  that  the  following  paper  has  been  prepared. 
A  chronological  table  has  been  arranged,  showing  all  the  circumstances 
Under  which  hostilities  have  been  commenced  by  different  countries 
against  others,  prior  to  a  declaration  of  war,  from  the  year  1700  to 
1871. 

"  The  result   of  the   investigation,   as  the  work  has  gone   on,   has 


4  THE   OUTBREAK  OF  WAR.  [PART  I. 

been  to  completely  change  its  character.  It  was  commenced  under 
the  impression  that  here  and  there  a  casual  case  might  be  discov- 
ered in  which  the  ambition  of  a  Napoleon  or  of  a  Frederick  had  led 
to  some  breach  of  established  usage.  The  result  is  to  show  conclu- 
sively that  there  has  not  been,  unless  in  mere  theory,  and  in  the  tone 
adopted  by  historians  as  to  what  ought  to  have  been,  any  established 
usage  whatever  on  the  subject.  Circumstances  have  occurred  in  which 
'declarations  of  war'  have  been  issued  prior  to  hostilities;  but  dur- 
ing the  171  years  here  taken  (from  1700  to  1870  inclusive),  less  than 
ten  instances  of  the  kind  have  occurred. 

"  One  or  two  doubtful  instances  of  previous  declaration  have  not 
been  referred  to. 

"The  other  cases  of  previous  declaration  are  mentioned  an4  are 
chiefly  interesting  as  showing  how  few  of  them  were  due  to  a 
punctilious  desire  to  warn  an  unsuspecting  friend  that  he  was  about 
to  be  treated  as  an  enemy.  In  one  case  France  issued  a  declaration 
of  war  prior  to  joining  us  in  a  war  against  Spain;  this  may  be  con- 
sidered as  a  fair  case  of  giving  warning,  but  in  all  instances  in  which 
the  Power  warned  is  already  at  war,  the  warning  is  comparatively 
valueless.  For  the  country  being  at  war,  preparations  against  sur- 
prises have  already  been  made;  the  conditions  of  war  have  already 
taken  the  place  of  the  conditions  of  peace.  It  is  only  those  cases 
in  which  a  country  actually  at  peace  with  all  its  neighbours,  has  re- 
ceived warning  of  coming  war,  that  provide  peaceful  citizens  with 
adequate  precedents  on  which  to  build  their  hopes  of  security. 

"  In  the  second  case  here  recorded,  political  motives  led  the  French 
convention  to  declare  war  against  Europe;  in  the  third  case,  popular 
excitement  led  to  a  similar  declaration. 

"  After  the  Peace  of  Amiens,  England  and  France  declared  war,  there 
being  no  motive  to  tempt  either  to  effect  a  surprise,  since  both  Powers 
had  been  preparing  for  war  during  nearly  all  the  time  of  peace,  and 
England,  as  Napoleon  well  knew,  regarded  Napoleon's  acts^  of  aggression 
against  Switzerland  as  virtually  hostilities  against  herself. 

"  On  the  other  hand,  107  cases  are  recorded  in  which  hostilities 
have  been  commenced  by  the  subjects  of  European  Powers  or  of  the 
United  States  of  America  against  other  Powers  without  declaration  of 
war.  This  number  only  includes  for  the  European  Powers  instances 
of  European  action  in  Europe,  on  the  borders  of  the  Mediterranean, 
or  against  colonies  in  possession  of  European  Powers  abroad.  If  the 
whole  history  of  Indian,  Chinese,  and  extra-colonial  wars  with  savage 
tribes  had  been  added,  the  number  might  have  been  greatly  increased, 
but  the  only  effect  would  have  been  to  lengthen  the  paper  without 
supplying  illustrations   precisely  relevant  to  the  matter  in  hand. 


CHAP.  I.,  SECT.  I.]      GENERAL   STATEMENTS.  5 

"It  is  also  noteworthy  that  in  the  course  of  171  years,  England 
engaged  in  hostilities  30  times,  France  37  times,  Prussia  7  times,  Aus- 
tria 12  times,  America  5  times  and  Russia  about  7  times,  saying  noth- 
ing of  hostilities  against  Asiatic  nations,  all  these  without  any  prior 
declaration  of  war." 

Thus,  by  strength  of  international  usage,  a  declaration  of 
war  need  not  necessarily  precourse  belligerent  relations,  and 
so  if  Japan  opened  the  war  without  any  declaration  of  war, 
nothing  can  be  said  against  it.  It  would  be  entirely  another 
question  if  the  future  was  the  subject  under  discussion.  It  is  an 
indisputable  fact  that  an  occurrence  in  conformity  with  past 
precedent  cannot  be  criticised  by  what  was  to  be  hoped  of  the 
future. 

In  the  second  Hague  Conference  the  following  Convention 

was  passed: 

Convention  Relative   to   the   Opening   of  Hostilities. 

His  Majesty  the  Emperor  of  Germany,  King  of  Prussia,  etc.: 

Considering  that,  for  the  security  of  peaceful  relations,  it  is  im- 
portant that  hostilities  shall  not  begin  without  a  previous  notice;  and 

That  it  is  likewise  important  that  a  state  of  war  shall  be  made 
known  without  delay  to  the  neutral  powers;  and 

Being  desirous  of  concluding  a  convention  for  this  purpose,  have 
appointed  as  their  plenipotentiaries,  to  wit: 

[Names  of  plenipotentiaries.] 

Who,  after  depositing  their  full  powers,  found  in  good  and  due 
form,  have  agreed  on  the  following  provisions: 

Article    I. 
The   contracting  Powers  agree  that  hostilities  between  them   should 
not  begin  without  a  previous  unequivocal  notice,  which  shall  either  be 
in  the  form  of  a  declaration  of  war  with  reasons  therefor,  or  of  an 
ultimatum  with  a   conditional  declaration  of  war. 

Article  II. 
A  state  of  war  shall  be  made  known  without  delay  to  the  neutral 
Powers,  and  shall  not  be  effective  with  regard  to  them  until  they  re- 
ceive a  notice,  which  may  even  be  given  by  telegraph.  However,  the 
neutral  Powers  cannot  use  the  lack  of  a  notice  as  a  pretext  if  it 
should  be  proven  beyond  doubt  that  they  really  knew  of  the  state 
of  war. 


6  THE   OUTBREAK  OF  WAR.  [PART   I. 

Article   III. 

Article  I.  of  the  present  convention  shall  be  applicable  in  case  of 
war  between  two  or  more  of  the  contracting  Powers. 

Article  II.  shall  be  binding  in  the  relations  between  a  contracting 
belligerent   and  neutral  Powers   which   are  also   contracting   parties. 

Prof.  J.  Westlake  remarks :  * 

"  This  regulation  coincides  with  the  doctrine  which  we  have  laid 
down  above.  Only  two  remarks  are  needed  in  order  to  put  the  matter 
in  a  clear  light.  One  is  that  the  declaration  of  war  is  now  expressly- 
required  to  be  motivee  which  the  declarants  have  always  made  it  for 
their  own  justification.  The  other  is  that  the  commencement  of  hos- 
tilities without  a  preceding  declaration,  in  such  peculiar  cases  as  are 
contemplated  above,  is  left  possible  by  the  fact  that  the  parties  are 
not  made  to  contract  that  they  will  not  commence  hostilities  against 
one  another  otherwise  than  as  described,  but  recognise  that  hostilities 
ought  not    (ne  doivent  pas)    to  be  otherwise  commenced. 

"  Nothing  can  more  clearly  show  the  impossibility  of  insisting  on 
an  interval  of  notice  between  a  declaration  of  war  and  a  commence- 
ment of  hostilities  under  it,  than  the  fact  that  the  very  moderate 
proposal  of  a  24-hours'  interval,  made  by  the  delegation  of  the  Neth- 
erlands, was  not  accepted.  The  Conference  has  therefore  rather  con- 
firmed than  weakened  the  necessity  that,  in  order  not  to  be  taken  un- 
prepared, every  nation  must  rely  on  its  own  vigilance  and  on  no 
formal   rule.'*' 

As  mentioned  in  the  diary  in  Appendix  III.,  just  after  the 
Japanese  torpedo  boats  made  an  attack  on  the  Russian  fleet  at 
Port  Arthur,  the  following  declarations  were  issued  by  both  the 
governments : 

JAPANESE    DECLARATION    OF    WAR. 

(Official  Translation.) 

10th  Feb.,  1904. 
We,  by  the  Grace  of  Heaven,  Emperor  of  Japan,  seated  on  the  Throne 
occupied  by  the  same  Dynasty  from  time  immemorial,  do  hereby  make 
Proclamation  to  all  Our  loyal  and  brave  subjects  as  follows: 

We  hereby  declare  war  against  Russia  and  We  command  Our  Army 
and  Navy  to  carry  on  hostilities  against  that  Empire  with  all  their 
strength,  and  We  also  command  all  Our  competent  authorities  to  make 
every  effort,  in  pursuance  of  their  duties  and  in  accordance  with  their 

I  Westlake's  International  Law,  Part  II.,  War,  1807,  p.  267. 


CHAP.  I.,  SECT.  I.]      GENERAL   STATEMENTS.  7 

powers,  to  attain  the  national  aim  with  all  the  means  within  the  limits 
of  the  law  of  nations. 

We  have  always  deemed  it  essential  to  international  relations  and 
made  it  Our  constant  aim  to  promote  the  pacific  progress  of  Our  Empire 
in  civilisation,  to  strengthen  Our  friendly  ties  with  other  States,  and  to 
establish  a  state  of  things  which  would  maintain  enduring  peace  in  the 
Extreme  East  and  assure  the  future  security  of  Our  Dominion  without 
injury  to  the  rights  and  interests  of  other  Powers.  Our  Competent 
Authorities  have  also  performed  their  duties  in  obedience  to  Our  will, 
so  that  Our  relations  with  the  Powers  have  been  steadily  growing  in 
cordiality.  It  was  thus  entirely  against  Our  expectation  that  We  have 
unhappily  come  to  open  hostilities  against  Russia. 

The  integrity  of  Korea  is  a  matter  of  constant  concern  to  this 
Empire,  not  only  because  of  Our  traditional  relations  with  that  country, 
but  because  the  separate  existence  of  Korea  is  essential  to  the  safety 
of  Our  Realm.  Nevertheless  Russia,  in  disregard  of  her  solemn  treaty 
pledges  to  China  and  her  repeated  assurances  to  other  Powers,  is  still 
in  occupation  of  Manchuria  and  has  consolidated  and  strengthened  her 
hold  upon  those  provinces  and  is  bent  upon  their  final  annexation.  And 
since  the  absorption  of  Manchuria  by  Russia  would  render  it  impossible 
to  maintain  the  integrity  of  Korea  and  would  in  addition  compel  the 
abandonment  of  all  hope  for  peace  in  the  Extreme  East,  We  determined 
in  those  circumstances  to  settle  the  question  by  negotiation  and  to  secure 
thereby  permanent  peace.  With  that  object  in  view,  Our  Competent 
Authorities,  by  Our  order,  made  proposals  to  Russia,  and  frequent  con- 
ferences were  held  during  the  course  of  six  months.  Russia,  however, 
never  met  such  proposals  in  a  spirit  of  conciliation,  but  by  her  wanton 
delays  put  off  the  settlement  of  the  question,  and  by  ostensibly  advo- 
cating peace  on  the  one  hand  while  she  was  on  the  other  extending  her 
naval  and  military  preparations,  sought  to  accomplish  her  own  selfish 
designs. 

We  cannot  in  the  least  admit  that  Russia  had  from  the  first  any 
serious  or  genuine  desire  for  peace.  She  has  rejected  the  proposals  of 
Our  Government;  the  safety  of  Korea  is  in  danger;  the  vital  interests 
of  Our  Empire  are  menaced.  The  guarantees  for  the  future  which  We 
have  failed  to  secure  by  peaceful  negotiations,  We  can  now  only  seek 
by  an  appeal  to  arms. 

It  is  Our  earnest  wish  that  by  the  loyalty  and  valour  of  Our  faith- 
ful subjects,  peace  may  soon  be  permanently  restored  and  the  glory  of 
Our  Empire  preserved. 

RUSSIAN    DECLARATION    OF   WAR. 

10th  Feb.,  1904. 
By  the  grace  of  God  We,  Nicholas  II.,  Emperor  and  Autocrat  of  all 
the  Russias,  etc.,  make  known  to  all  our  loyal  subjects: 

In  Our  solicitude  for  the  maintenance  of  peace,  which  is  dear  to 
Our  heart,  we   made  every  exertion   to  consolidate  tranquillity  in   the 


8  Till-:    ol'TMRNAK.   OF   WAR.  [l\\KT    I. 

|  .,,      |     ,    |  |n     ll,,     ,      | .«  :i .  .  I  1 1 1     nun.     we     M-liilicd    a  -  <clit     to     the    proposals 

,,f  the  ,lii|»iiiK  i  « •  "\< rninent  to  revise  agreements  regarding  KoitM 
affairs  existing  bitWiil  thi  tWO  <Jo\ci  nmcnls.  However,  thi  BjgOtli- 
tions  begun  upon  this  Hiihjr.l  PMTf  not  brought  to  a  conclusion,  ami 
. I. ip: in.    without    awaiting    the    receipt  ol    llir    la  -I    responsive    proposals   of 

our  GortrantBti  declared  thi  negotiations  broken  off  an<l  diplomatic 

n-la  lions  with  Russia  dissolve! 

WlthOttt    advising   iih    of    tin-    fact    that   the   breach    of   such    relations 

would  in  itself  nnaii  on  opening  of  warlike  operation!,  thi  Japonaat 

( in\«  i  HUM  ul  fr.'ivr  Ordan  to  itl  torpedo  boats  to  suddenly  attaoll  Our 
MUadrOU  -lauding  in  (he  outer  harbour  of  Ihc  fortress  of  Port  Arthur. 
CJpOD  ic<ci\ing  reports  from  the  Viceroy  in  the  Far  I'la  -t  about  this, 
\\  |  numcdialcU  < •omnia nded  him  to  answer  the  dapauese  ohaUaOgt  with 
aimed    lorce. 

Making    known   this  Our   decision,   We,   with    unshaken   faith    in    the 
Almighty   and    with    a    firm  expectation  of   and    reliance  upon    the   unatii 
■tOUl   willingness  of  all  Our  loyal    subjects   to   stand   with   us  in   defence 
Oj  thi  I'at  hci  lanil,  ask  (lod's  blessing  upon  our  stalwart  land  and  na\al 
forces. 

Qivafl  at  S|.  Petersburg,  .January  27,  1904,  A.n.  (new  calendar, 
l-Vlnuaix  '.».  1904),  and  in  the  tenth  year  of  our  reign,  written  in  full 
by  the  hand  of   His  Imperial   Majesty,  Nicholas. 

On  fcha  L8th  Feb.,  1'doi,  the  Russian  Government  published 
thi  following  manifesto: 

It   lit    days  have  passed  since  Russia  has  been  burning  with  Indig- 
nation  ngainst   an  enemy    which    has   suddenly    broken   off   negotiations 
and    whose  aim  it    was  to  obtain  a  slight  success  in  the  long  desired    war 
by  a  treacherous  attack.     Thi    Russian   nation  with    natural  impatience 
i      wishing  for  a   speed 3    revenge  and   expects  news  from  the    Pmi 
with    lexeii^h    an\iet\.      The    unit  \     and    power    of    the    Russian    nation 
remove   doubts   that    Japan    will    reeehe    «  ha-.l  iseinent    for   her   treachery 
and  for  having  challenged    Russia   to   war.      While   our  So\n<i 
to   maintain  peace,   the  circumstances  of  the  out-break  of  hostilities  com 
pel    us    to    wait    with    patience    for    news    concerning    t  lit-    success   of   our 
tioops,  which  cannot    be  received  before  decisive   action   is   taken  by    the 
Hussiiiu    irmy.       The    wide   distances   of    the    territory    attacked   and    the 
desire  of   the    Kmperor  to   maintain    peace,    were  the  reasons  for  the  ini- 

I  ditv  of  making  far-reaching  preparations  for  war  beforehand.  It 
will  not  take  much  time  to  give  .lapan  signal  defeats  worthy  of  the 
power  of  Russia,  while  Russia  will  be  careful  not  io  shed  unnecessarily 
the  blOOd  of  her  children  in  inflicting  ehatisement  on  a  nation  which 
well  deserves  it  ami  which  has  challenged  Russia  in  an  arrogant  man 
ner.     She  must,  hov  if    foi   events  with  patience   in   the  certainty 

thai  our  anny  will  revenge  the  attack  a  hundredfold.  The  operations 
ou   land   still   lie   in    the  distant    future.     We  cannot    receive  news  from 


CHAP.  I.,  SECT.  II.]      PROTESTS   AND   ANSWERS.  9 

the  seat  of  war  very  quickly.  Unnecessary  shedding  of  blood  is  not 
worthy  of  the  power  and  greatness  of  the  Empire  of  Russia.  Our 
Fatherland  shows  so  much  unity  and  willingness  to  make  sacrifices  in 
the  national  cause  that  all  correct  news  arriving  from  the  seat  of  war 
shall  be  immediately  published  to  the  whole  nation." 


Sect.  II.     Russian  Protests  and  Japanese  Answers. 

Russia's  strong  protest  to  the  Powers  is  as  follows: 

A    FULL    TEXT. 

Russia  presented  to  the  Powers,  through  her  Representatives,  on 
February  22,  a  protest  against  certain  actions  of  Japan  in  Korea, 
which  she  alleged  to  be  against  the  recognised  rules  of  International 
Law.     The  Russian  document  reads: 

"  Since  the  rupture  of  negotiations  between  Russia  and  Japan,  the 
attitude  of  the  Tokyo  cabinet  has  constituted  open  violation  of  all 
customary  laws  governing  the  mutual  declarations  of  civilised  nations. 
Without  specifying  each  particular  violation  of  the  laws  on  the  part  of 
Japan,  the  Imperial  Government  considers  it  necessary  to  draw  the 
attention  of  the  Powers  to  the  acts  of  violence  committed  by  the 
Japanese  Government  with  respect  to  Korea.  The  independence  and 
integrity  of  Korea  as  a  fully  independent  empire  have  been  fully 
recognised  by  all  the  Powers,  and  the  inviolability  of  this  fundamental 
principle  was  confirmed  by  Art.  I.  of  the  Shimonoseki  treaty,  and  by 
the  agreement  for  this  purpose  between  Japan  and  Germany  on  Janu- 
ary 30,  1902,  as  well  as  by  the  Franco- Russian  declaration  of  March 
16,  1902. 

"  The  Emperor  of  Korea,  foreseeing  the  danger  of  a  possible  conflict 
between  Russia  and  Japan,  addressed,  early  in  January,  1904,  a  note 
to  all  the  Powers  declaring  his  intention  to  preserve  the  strictest  neu- 
trality. This  declaration  was  received  with  satisfaction  by  the  powers 
and  it  was  ratified  by  Russia. 

"  According  to  the  Russian  Minister  to  Korea,  the  British  Govern- 
ment charged  the  British  diplomatic  representative  at  Soul  to  present 
an  official  note  to  the  Emperor  of  Korea  thanking  him  for  his  declara- 
tion of  neutrality. 

"  In  disregard  of  all  these  facts,  in  spite  of  all  treaties,  in  spite  of 
its  obligations,  and  in  violation  of  the  fundamental  rules  of  inter- 
national law,  it  has  been  proved  by  exact  and  fully  confirmed  facts 
that  the  Japanese  Government, 

"  First,  before  the  opening  of  hostilities  against  Russia,  landed  its 
troops  in  the  independent  empire  of  Korea,  which  had  declared  its 
neutrality. 

"  Second,  with  a  division  of  its  fleet  made  a  sudden  attack  on  Feb- 
ruary 8th — that  is,  three  days  prior  to  the  declaration  of  war — on  two 
Russian  warships  in  the  neutral  port  of  Chemulpo.    The  commanders  of 


10  THE   OUTBREAK  OF  WAR.  [PART  I. 

these  ships  had  not  been  notified  of  the  severance  of  diplomatic  rela- 
tions, as  the  Japanese  maliciously  stopped  the  delivery  of  Russian  tele- 
grams by  the  Danish  cable  and  destroyed  the  telegraphic  communication 
of  the  Korean  Government.  The  details  of  this  dastardly  attack  are 
contained  and  published  in  an  official  telegram  from  the  Russian  Min- 
ister at  Soul. 

"  Third,  in  spite  of  the  international  laws  above  mentioned,  and 
shortly  before  opening  of  hostilities,  the  Japanese  captured  as  prizes  of 
war  certain  Russian  merchant  ships  in  neutral  ports  of  Korea. 

"  Fourth,  Japan  declared  to  the  Emperor  of  Korea,  through  the 
Japanese  Minister  at  Soul,  that  Korea  would  henceforth  be  under  Japa- 
nese administration,  and  she  warned  the  Emperor  that  in  case  of  his 
non-compliance  Japanese  troop  would  occupy  the  palace. 

"  Fifth,  through  the  French  Minister  at  Soul  she  summoned  the 
Russian  representative  at  the  Korean  court  to  leave  the  country,  with 
the  staffs  of  the  Russian  Legation  and  Consulate. 

"  Recognising  that  all  the  above  facts  constitute  a  flagrant  breach 
of  international  law,  the  Imperial  Government  considers  it  to  be  its 
duty  to  lodge  a  protest  with  all  the  Powers  against  this  procedure  of 
the  Japanese  Government,  and  it  is  firmly  convinced  that  all  the  pow- 
ers, valuing  the  principles  which  guarantee  their  relations,  will  agree 
with  the  Russian  attitude.  At  the  same  time  the  Imperial  Government 
considers  it  necessary  to  issue  a  timely  warning  that,  owing  to  Japan's 
illegal  assumption  of  power  in  Korea,  the  Government  declares  all 
orders  and  declarations  which  may  be  issued  on  the  part  of  the  Korean 
Government  to  be  invalid. 

"  I  beg  you  to  communicate  this  document  to  the  Governments  to 

which  you  are  accredited. 

"  Lamsdorff." 

First  Reply  of  the  Japanese  Government  to  the  Russian 

Circulars. 

22nd  Feb.,  1904. 

The  Russian  Government  have,  in  their  communiques  of  the  18th 
and  20th  instants,  charged  Japan  with  having  treacherously  obtained 
a  slight  victory  by  a  sudden  attack  upon'  Russia,  who  was  bent  upon 
maintaining  peace,  and  asserted  that  since  the  rupture  of  diplomatic 
relations  can  never  be  looked  upon  as  the  opening  of  hostilities,  and 
since  Japan  did  not  issue  her  declaration  of  war  until  the  11th,  she 
was  guilty  of  a  flagrant  breach  of  the  principles  of  International  Law 
in  making,  as  early  as  the  8th  Feb.,  most  unwarrantable  attacks  on 
Russian  men-of-war  and  merchant  ships. 

That  Russia  had  never  entertained  any  sincere  desire  for  peace  may 
be  clearly  seen  from  the  facts  that  she  persistently  refused  throughout 
the  whole  course  of  the  negotiations  to  meet  the  proposals  made  by 
Japan  in  a  conciliatory  spirit,  and  that  by  wanton  delays  put  off  the 
settlement  of  the   question,    while    at   the   same    time   she   was    busily 


CHAP.  I.,  SECT.  II.]      PROTESTS    AND    ANSWERS.  11 

extending  her  naval  and  military  preparations.  In  confirmation  of  these 
facts  may  be  given  her  warlike  preparations  in  the  Far  East  since 
April  last,  when  she  failed  to  carry  out  her  promised  second  evacuation 
of  Manchuria. 

Increase  in  Naval  Strength. 


No. 

Tonnage. 

Battleships 

3 

1 
5 
7 
1 

2 

38,488 
7,726 

26,417 
2,450 
1,334 
6,000 

Armoured  cruiser 

Cruisers 

Torpedo  destroyers 

Gunboat 

Mine-ships 

Total 

19 

82,415 

In  addition  to  these,  Russia  sent  destroyers  in  section  by  rail  to 
Port  Arthur.  The  work  of  putting  those  vessels  together  was  hurried 
up,  and  seven  of  them  have  been  already  completed.  Furthermore,  two 
vessels  of  the  Volunteer  fleet  were  armed  at  Vladivostock  and  hoisted 
the  Russian  naval  ensign. 

She  further  ordered  out  one  battleship,  three  cruisers,  seven  destroy- 
ers, and  four  torpedo  boats  (total  tonnage  amounting  to  about  30,740), 
which  might  have  joined  the  Russian  squadron  already  in  the  Far  East 
had  not  certain  ulterior  circumstances  compelled  Russia  to  recall  them, 
and  these,  if  added  to  the  others,  would  make  the  aggregate  increase 
113,000  tons. 

Increase  in  Land  Forces. 

Since  the  29th  of  June  last,  when,  on  the  pretext  of  a  trial  trans- 
portation on  the  Siberian  railway,  Russia  sent  to  Chita  two  infantry 
brigades,  two  artillery  battalions,  a  body  of  cavalry,  and  a  military 
train,  Russia  has  continued  to  despatch  troops  to  the  Far  East,  and  at 
the  beginning  of  the  present  month  their  total  augmented  strength  was 
over  40,000,  and  plans  were  being  made  for  sending  out,  if  necessary, 
over  200,000  more. 

She  has  at  the  same  time  been  engaged  day  and  night  in  strength- 
ening the  fortifications  at  the  naval  ports  of  Port  Arthur  and  Vladivos- 
tock, building  forts  at  Hunchun,  Liaoyang,  and  other  strategical  points, 
and  forwarding  arms  and  ammunition  to  the  Far  East  by  the  Siberian 
railway  and  the  Volunteer  fleet;  and  in  the  middle  of  October  last,  a 
train  of  14  cars  hurriedly  left  Russia  laden  with  the  equipment  of  a 
field  hospital. 

It  is  therefore  quite  evident  that  Russia  had  not  the  least  inclination 
for  friendly  settlement,  but  solely  sought  by  military  preponderance  to 
force  Japan  into  submission. 

The  military  activity  of  Russia  became,  from  the  latter  part  of 
January  to  the  beginning  of  February,  still  further  intensified.     On  the 


12  THE   OUTBREAK  OF   WAR.  [PART   I. 

21st  of  January  about  two  battalions  of  infantry  and  a  detachment  of 
cavalry  were  despatched  from  Port  Arthur  and  Dalny  to  the  northern 
frontier  of  Korea;  and  on  the  28th  of  the  same  month,  an  order  to 
prepare  for  war  was  given  by  Admiral  Alexieff  to  the  forces  which  were 
stationed  in  the  vicinity  of  the  Yalu;  and  on  the  1st  of  February,  the 
Commander  at  Vladivostock,  under  orders  from  his  Government,  re- 
quested the  Japanese  Commercial  Agent  at  that  port  that,  as  a  state 
of  siege  might  at  any  moment  be  proclaimed  there,  he  would  make  his 
nationals  prepare  to  withdraw  to  Khabarovsk.  At  Port  Arthur  all  the 
powerful  warships,  except  a  battleship  then  under  repair,  steamed  into 
the  open  sea,  while  troops  advanced  in  large  forces  from  Liaoyang 
toward  the  Yalu. 

Who  can  then  say  that  Russia  had  no  warlike  intentions  or  that 
she  was  unprepared  for  war?  Japan,  seeing  that  the  situation  had 
become  so  critical  that  it  admitted  of  no  further  delay,  was  compelled 
to  break  off  the  abortive  negotiations  and  decided  to  take  necessary 
steps  for  self-protection.  The  responsibility  for  the  challenge  to  war 
rests,  then,  not  with  Japan,  but  solely  with  Russia. 

Finally,  on  the  6th  of  February,  Japan  announced  to  Russia  her 
decision  to  terminate  pending  negotiations,  and  that  she  would  take 
such  independent  action  as  she  might  deem  best  to  defend  her  position 
menaced  by  Russia  and  to  protect  her  established  rights  and  legitimate 
interests,  and  that  she  would  sever  her  diplomatic  relations  and  with- 
draw her  Legation.  The  term  independent  action  naturally  includes  the 
opening  of  hostilities.  Even  supposing  that  Russia  was  unable  to  under- 
stand it  in  that  sense,  that  is,  of  course,  no  reason  why  Japan  should, 
in  Russia's  place,  be  held  responsible  for  the  misinterpretation.  Again, 
it  is  the  unanimous  opinion  of  international  jurists  that  a  declaration 
of  war  is  not  an  indispensable  prerequisite  to  the  opening  of  hostilities. 
Indeed,  it  has  been  the  common  practice  in  recent  wars  to  declare  war 
subsequently  to  the  opening  of  hostilities.  Japan's  action  is  not  there- 
fore open  to  the  least  criticism  from  the  standpoint  of  international 
law.  It  must  certainly  be  confessed  that  the  charge  sounds  rather  odd, 
coming  as  it  does  from  the  lips  of  Russia;  for  there  are  not  only  very 
many  historical  instances  of  that  country  herself  instantly  taking  a 
hostile  action  without  declaring  war,  but  in  1808  she  invaded  Finland 
even  before  the  rupture  of  their  diplomatic  relations. 

Second  Reply  of  the  Japanese  Government. 

March  2nd,  1904. 
The  Imperial  Japanese  Government  is  given  to  understand  that  the 
Russian  Government  has  recently  addressed  a  note  to  the  Powers  in 
which  the  Government  of  Japan  is  charged  with  having  committed 
certain  acts  in  Korea  which  is  considered  by  Russia  to  be  in  violation 
of  International  Law,  and  all  future  orders  and  declarations  of  the 
Korean  Government  are  declared  in  that  note  to  be  invalid. 


CHAP.  I.,  SECT.  II.]      PROTESTS    AND    ANSWERS.  13 

The  Imperial  Government  does  not  find  it  necessary  in  the  present 
instance  to  concern  themselves  in  any  way  with  the  opinions  or  declara- 
tions of  the  Russian  Government,  but  it  believes  it  to  be  their  right  and 
duty  to  correct  misstatements  of  fact  which,  if  permitted  to  remain 
uncontradicted,  might  give  rise  in  the  minds  of  neutral  Powers  to  incor- 
rect inferences  and  conclusions. 

Accordingly  the  Imperial  Government  makes  the  following  state- 
ment respecting  the  five  acts,  which  in  the  note  referred  to  are  declared 
to   be  fully  proved  and  confirmed  facts; 

1.  The  Imperial  Government  admits  that  Japanese  troops  landed 
in  Korea  before  the  declaration  of  war  was  issued,  but  not  before  a 
state  of  war  actually  existed  between  Japan  and  Russia.  The  main- 
tenance of  the  independence  and  territorial  integrity  of  Korea  is  one 
of  the  objects  of  the  war,  and  the  despatch  of  troops  to  the  menaced 
territory  was  a  matter  of  right  and  necessity  which  had  the  distinct 
consent  of  the  Korean  Government.  The  Imperial  Government  draws  a 
sharp  distinction  between  the  landing  of  Japanese  troops  in  Korea  in 
the  actual  circumstances  of  the  case,  and  the  sending  of  large  bodies 
of  Russian  troops  to  Manchuria  without  the  consent  of  China,  while 
peaceful  negotiations  were  still  in  progress. 

2.  The  Imperial  Government  declares  that  the  allegations  under  this 
number  are  untrue.  The  Imperial  Government  did  not  stop  the  delivery 
of  Russian  telegrams  by  the  Danish  cable,  neither  did  they  destroy  the 
Korean  Government's  telegraphic  communication.  Regarding  the  alleged 
sudden  attack,  Feb.  8th,  on  two  Russian  men-of-war  in  the  port  of  Che- 
mulpo, it  is  only  necessary  to  say  that  a  state  of  war  existed  and  that, 
Korea  having  given  her  consent  to  the  landing  of  Japanese  troops  at 
Chemulpo,  the  harbour  of  Chemulpo  had  ceased  to  be  a  neutral  port, 
at  least  as  between  the  belligerents. 

3.  The  Imperial  Government  has  established  Prize  Courts  with  full 
authority  to  pronounce  finally  upon  the  question  of  the  legality  of 
seizures  of  merchant  vessels.  Accordingly  it  would  manifestly  be  out 
of  place  for  the  Imperial  Government  to  make  any  statement  regarding 
the  assertion  under  this  number. 

4.  The  Imperial  Government  also  declares  the  charge  under  this 
number  to  be  absolutely  and  wholly  without  foundation  in  fact. 

5.  The  Imperial  Government  denies  the  accuracy  of  the  statement 
under  this  number.  No  demand,  either  direct  or  indirect,  was  addressed 
by  the  Japanese  Government  to  the  Russian  Minister  to  retire  from 
Korea.  On  the  10th  of  February  the  French  Charge"  d'affaires  called 
on  the  Japanese  Minister  and  informed  him,  as  he  did  afterward  in 
writing,  that  it  was  the  desire  of  the  Russian  Minister  to  leave  Korea, 
and  asked  the  opinion  of  the  Japanese  Minister  on  the  subject.  The 
Japanese  Minister  replied  that  if  the  Russian  Minister  would  withdraw 
in  a  peaceful  manner,  taking  with  him  his  staff  and  Legation  guard, 
he  would  be  fully  protected  by  Japanese  troops.  He  did  so  withdraw 
of  his  own  free  will  on  the  12th  of  February,  and  an  escort  of  Japanese 
soldiers  was  furnished  him  as  far  as  Chemulpo. 


14  THE   OUTBREAK  OF  WAR.  [PART  I. 

In  this  connection  it  may  be  remarked  that  the  Russian  Consul  at 
Fusan  remained  at  his  post  as  late  as  the  28th  of  February.  It  is 
reported  that  he  was  compelled  to  stay  so  long  in  absence  of  instruc- 
tions which  the  Russian  Minister  apparently  did  not  care  to  give  his 
Consul  before  his  departure.  When  it  was  made  known  that  necessary 
instructions  had  at  last  reached  the  Russian  Consul,  and  that  he  desired 
to  leave  Fusan  as  soon  as  possible,  the  Japanese  Consul  in  the  same  port 
offered  him  every  facility  for  his  departure,  and  his  passage  to  Shanghai 
through  Japan  was  arranged  by  the  latter. 

Just  after  the  war  had  commenced  and  before  the  govern- 
mental replies  to  the  Eussian  protest  had  been  issued,  the  fol- 
lowing essay  was  published  by  the  author.  The  reason  for  add- 
ing it  here  is  that  it  may  take  the  place  of  a  minute  observation 
of  the  outbreak  of  the  hostilities,  though  in  many  respects  it 
may  appear  to  be  a  duplication  of  the  government's  replies. 

Sect.  III.  A  Personal  Observation  on  the  Russian  Declara- 
tion.1 

1.  Data  Concerning  the  Outbreak  of  the  War. 

The  Eussian  Government  seems  to  have  endeavoured  to 
throw  upon  Japan  the  responsibility  of  having  trampled  the 
peace  of  the  Orient  by  upbraiding  our  conduct  in  the  vilest  of 
terms  from  the  point  of  view  of  the  so-called  International 
Law.  Leaving  the  vileness  of  the  reproaches  to  take  care 
of  themselves,  we  have  here,  in  a  few  words,  to  justify  those 
points,  so  much  exaggerated  and  ill-construed  by  the  Eus- 
sians.  Should  a  formal  notice  necessarily  precede  the  com- 
mencement of  war  or  should  it  be  condemned  by  the  authority 
of  International  Law?  None  will  deny  that  the  answer  must 
be  in  the  negative,  for  belligerent  relations  may  be  commenced 
at  any  time,  as  the  law  expressly  authorises.  Before  we  clear 
up  this  point,  let  us  summarise  very  briefly  those  facts  that 
tend  to  put  our  fair  dealing  in  its  proper  light. 

To  sum  up  the  Eusso-Japanese  negotiations  prior  to  the 
commencement  of  war:  In  the  latter  part  of  July,  1903,  the 
Japanese  Government  declared  to  Eussia  our  primary  wishes, 

1  This  essay  appeared  in  the  Koku-min,  Tokyo. 


CHAP.  I.,  SECT.  III.]      ON  THE  RUSSIAN  DECLARATION.  15 

and  under  date  of  August  12th  formally  sent  to  them  a  writ 
containing  our  requisites,  to  which  the  Russian  Government 
gave  reply  as  late  as  the  30th  of  October,  accompanied  by 
the  refusal  to  permit  any  negotiations  being  held  at  the  Russian 
capital.  After  repeated  conferences,  at  Tokyo,  of  the  deputies 
on  both  sides,  our  Government  sent  to  Russia  a  settled  revision 
of  requisites  dated  the  30th  of  October,  to  which,  after  much 
delay,  answers  came  to  us,  dated  the  11th  of  December.  To 
our  admonitory  notice,  dated  the  21st,  urging  Russia  to  re- 
consider, the  answer  arrived  in  Tokyo  on  the  6th  of  January, 
1904;  and  as  to  our  repeated  notices  requiring  their  reconsider- 
ation, they  declined  to  give  an  answer,  even  when  pressed  by 
our  officials  several  times;  but  they  zealously  continued  prepa- 
rations for  war.  At  this  crisis  the  Japanese  Government  found 
it  inevitable  to  put  a  stop  to  her  friendly  relations  with  Russia, 
and  sent  a  notice  to  this  purport  to  the  Russian  Government. 
Now,  since  the  international  relationship  was  broken  off  under 
such  circumstances,  neither  of  these  hostile  nations  should  have 
had  any  objection  to  an  hostile  measure;  which,  however,  in 
this  case  was  resorted  to,  on  Japan's  part,  after  a  long  notice, 
thereby  affording  Russia  sufficient  time  for  preparation.  The 
severing  of  international  friendship  was  announced. to  Minister 
Rosen  by  Baron  Komura  in  Tokyo  at  2  o'clock  p.m.,  on  the  6th 
of  February,  and  an  official  notice  of  the  same  purport  was 
handed  to  Count  Lamsdorff  by  our  Minister  Kurino,  at  St. 
Petersburg  at  4  o'clock  the  same  day. 

Thus  there  was  an  interim  of  more  than  two  days  between 
the  breaking  off  of  international  friendship,  resorted  to  on  the 
part  of  Japan  after  so  many  moderate  measures,  and  our  de- 
stroyers' attack  at  the  harbour  of  Port  Arthur  on  the  8th. 
Availing  themselves  of  such  an  exceptional  display  of  indul- 
gence, if  they  had  wished  they  might  have  given  all  the  neces- 
sary cautions  to  Port  Arthur  and  other  quarters  of  consequence. 
These  facts  considered,  our  attitude  on  this  occasion  can  be 
said  to  have  been  rather  inclined  toward  generosity  than  to 
have  been  treacherous,  as  they  allege. 


16  THE   OUTBREAK  OF  WAR.  [PART   I. 

Dr.  Lawrence  says : 

"  The  fact  that,  when  the  attack  was  at  last  delivered,  the 
officers  were  engaged  in  festivity,  proves  them  negligent,  but 
does  not  prove  their  foes  treacherous." 

Nothing  could  be  more  clever  and  keen  than  this  criticism. 

2.     Hostilities  Need  No  Precursive  Notice. 

To  cite  a  few  of  the  important  instances  in  which  there  was 
no  warning  given: 

In  1715,  during  a  time  of  peace,  the  Duchies  of  Brehmen 
and  Verden  were  seized  by  England.  These  provinces  were 
Swedish. 

In  1718,  Spain,  by  a  powerful  expedition,  secretly  prepared, 
seized  Messina  and  the  greater  part  of  Sicily. 

On  the  11th  of  August,  1718  (six  months  before  any  decla- 
ration of  war),  Byng  destroyed  the  Spanish  fleet.  ■ 

In  1727,  Spain,  still  at  nominal  peace  with  England,  laid 
siege  to  Gibraltar  from  February  11th  to  June  23rd. 

In  August,  1756,  Frederick  the  Great  suddenly  invaded 
Saxony  with  75,000  men.  He  had  previously  asked  for  expla- 
nations as  to  certain  movements  of  Austrian  troops,  and  hav- 
ing received  an  evasive  answer,  despatched  a  second  Minister 
to  ask  for  a  definite  statement  whether  or  not  Austria  would 
pledge  herself  not  to  invade  Prussia  that  year  or  the  next.  As 
Carlyle  puts  it,  his  troops  were  meantime  everywhere  on  the 
march  "to  the  frontier  in  an  industrious,  cunningly  devised, 
evident,  and  yet  impenetrably  mysterious  manner."  On  the 
receipt  of  an  answer  from  Maria  Theresa  that  his  idea  that 
she  and  the  Empress  of  Kussia  were  contemplating  attack  on 
him  was  baseless  he  instantly  crossed  the  Saxon  frontier  and 
published  a  declaration — "protesting  in  the  most  solemn  man- 
ner that  he  had  no  hostile  views  against  his  Polish  Majesty 
or  his  dominions;  that  his  troops  did  not  enter  Saxony  as  an 
enemy;  that  he  only  seized  it  as  a  sacred  'depositum/  and  a 
means  of  protecting  his  own  territory,  threatened,  as  he  had 
reason  to  believe,  by  the  union  of  the  King  of  France,  the  King 


CHAP.  I.,  SECT.  III.]      ON  THE  RUSSIAN  DECLARATION.  17 

Elector,  the  Czarina,  and  the  Empress  Queen;  that  he  would 
take  care  that  his  troops  should  maintain  the  best  order  and 
the  most  exact  discipline;  and  that  he  desired  nothing  so  much 
as  the  happy  minute  when  he  could  have  the  satisfaction  of 
restoring  his  hereditary  dominions  to  his  Polish  Majesty." 

So  sudden  and  unexpected  was  his  stroke  that  the  Polish 
Court,  which  was  at  the  time  at  Dresden,  had  not  had  time  to 
remove  its  secret  archives,  which  Frederick  seized  and  pub- 
lished to  the  world,  showing  that  Maria  Theresa's  answer  to 
him — as  personal  a  pledge  of  her  own  word  as  a  lady  as  it  was 
possible  for  a  sovereign  to  have  given — was  in  express  terms 
false;  that  the  Empress  and  the  Polish  Court  had,  within  six 
months  after  the  Peace  of  Dresden,  commenced  a  plot  to  dis- 
member Prussia,  in  which  the  Empress  of  Kussia  had  joined  by 
the  Treaty  of  St.  Petersburg  (22nd  of  May,  1746)  ;  that  on  the 
14th  and  15th  of  May,  1753,  the  Russian  Senate  had  secretly 
agreed  to  dismember  and  crush  Prussia;  and  that  France,  hav- 
ing been  gained  over,  Russia  and  Austria  were  actually  mov- 
ing troops  to  put  the  project  into  execution,  when  Frederick 
anticipated  them  by  more  rapid  movements.  In  this  case  his 
declaration  was  not  designed  to  give  any  warning  of  his  com- 
ing hostile  acts,  but  (at  the  moment  when  his  movements 
could  no  longer  be  concealed)  to  reduce  the  resistance  of  the 
Saxons  to  a  minimum. 

In  1796,  the  French  Republican  army,  without  declaring 
war,  seized  forts  and  territory  of  the  States  of  the  Church, 
Naples,  Tuscany,  Parma,  Modena,  etc. 

In  1798,  Republican  France  suddenly  invaded  Republican 
Switzerland. 

In  1798,  France  suddenly  attacked  Piedmont.  Novarra, 
Suez,  and  Coni  were  seized  without  declaration. 

In  1807,  negotiations  were  still  on  at  Constantinople  while 
an  expedition  was  being  prepared  under  the  orders  of  the  Eng- 
lish Government  at  Messina  for  the  seizure  of  Egypt.  Before 
any  news  of  the  final  rupture  at  Constantinople  had  reached 
either    Egypt   or  the   English   Government,   "on   the    6th   of 


18  THE   OUTBREAK  OF  WAR.  [PART   I. 

March  the  Tigre,  74,  Captain  Benjamin  Hallowell,  accompa- 
nied by  the  Apollo,  38,  Captain  Fellows,  and  the  Wizard,  16, 
Captain  Polmer,  with  33  sail  of  transports,  having  5000 
troops  on  board,  under  Major-General  Fraser,  set  sail  from 
Messina,  and  on  the  loth  the  Tigre,  keeping  the  rest  of  the 
expedition  out  of  sight,  reached  the  offing  of  Alexandria,  and 
summoned  the  governor.  This  summons  having  been  disre- 
garded, Captain  Hallowell  waited  till  the  20th,  when  the  whole 
of  the  armament  anchored  in  Aboukir  Bay;  the  troops,  to 
the  number  of  1000  men,  were,  amidst  many  difficulties,  got 
on  shore,  with  five  field  pieces,  and  a  detachment  of  blue- 
jackets, under  Lieutenant  Boxer,  who  moved  forward  the  fol- 
lowing day,  and  took  possession  of  the  castle.  The  governor, 
as  soon  as  he  perceived  the  accession  of  strength,  accepted 
terms  of  capitulation,  and  on  the  21st,  "  the  anniversary  of  the 
Battle  of  Alexandria,"  the  city  was  taken  possession  of." 

In  1816,  Portugal  seized  Spanish  Montevideo  during  peace. 

In  1832,  France  seized  Ancona  during  absolute  peace  with 
Rome. 

In  1848,  with  the  Danish  Minister  still  at  Berlin,  Prussian 
troops  crossed  the  Danish  frontier  without  declaration. 

The  war  of  1863,  between  Austria  and  Prussia  on  the  one 
part,  and  Denmark  on  the  other,  virtually  commenced  by  the 
occupation  of  Holstein  and  Lauenburg  by  the  troops  of  the 
two  great  Powers. 

We  thus  see  that,  as  the  present  International  Law  stands, 
hostilities  do  begin  with  actual  battle,  and  that  again  no  pre- 
cursory notice  is  needed  to  make  it  lawful. 

If  the  Eussian  protestation  against  Japan's  attack  without 
any  prior  warning  is  serious,  a  glance  at  their  own  similar 
doings,  indelibly  put  down  in  history,  would  show  Russia  her- 
self to  be  by  far  the  more  advanced  delinquent  in  this  direction, 
assuming  the  unlawfulness  of  the  conduct. 

Before  the  battle  of  Narva,  in  1700,  Russia  took  military 
action  without  giving  any  special  notice.  (Cf.  J.  F.  Maurice, 
"Hostilities  without  Declaration  of  War,"  p.  12.) 


CHAP.  I.,  SECT.  III.]      ON  THE  RUSSIAN  DECLARATION.  19 

In  1733,  the  Kussian  army  suddenly  entered  Poland  for 
the  purpose  of  electing  Stanislaus,  anticipating  the  movement 
with  no  declaration  of  war.     (Ibid.,  p.  16.) 

In  1753,  Eussia,  allied  with  Austria  and  Prussia,  invaded 
Poland  without  warning.     (Ibid.,  p.  22.) 

In  1801,  the  Eussian  Emperor  Paul,  without  notice,  seized 
200  British  ships  in  Eussian  ports,  thus  opening  her  military 
movement.      (Ibid.,  p.  34.) 

In  1806,  in  the  course  of  a  negotiation,  the  Eussian  army 
suddenly  attacked  Moldavia,  taking  possession  of  a  fort.  (Ibid., 
p.  38.) 

In  1827,  the  allied  fleets  of  Eussia,  England,  and  France 
destroyed  the  Turkish  fleet  at  Navarius,  without  any  prior 
warning.      (Ibid.,  p.  49.) 

In  1828,  in  the  Eusso-Turkish  war,  hostilities  on  both  sides 
preceded  a  declaration  of  war.     (Ibid.,  p.  49.) 

In  1831,  the  Eussians  fired  upon,  sunk,  and  captured  Greek 
ships.     (Ibid.,  p.  50.) 

In  1836,  Eussia,  together  with  Prussia  and  Austria,  seized 
Cracow  without  any  warning.      (Ibid.,  p.  55.) 

In  1853,  the  Crimean  war  was  commenced  without  any 
declaration  of  war.     (Ibid.,  p.  64.) 

In  this  way  hostilities  without  a  declaration  of  war  have 
been  a  common  recourse,  frequently  availed  of  by  Eussia 
since  1700,  and  she  sometimes  went  so  far  as  to  take  mili- 
tary action  in  the  midst  of  diplomatic  negotiations.  A  protest 
from  such  a  quarter  is  illogical  and  unexpected,  to  say  the 
least. 

3.     On  the  Russian  Manifesto  Concerning  Korea. 

According  to  an  official  telegram  received  by  the  Depart- 
ment of  Foreign  Affairs,  the  Eussian  Government  seems  to 
have  sent  to  the  Powers  a  manifesto,  dated  the  22nd  of  Feb- 
ruary, 1904,  reproaching  the  Japanese  for  the  attitude  assumed 
in  Korea.  Finding  as  yet  no  access  to  the  original,  reliance 
must  be  placed  on  a  translation  in  the  following  brief  criticism : 


20  .  THE   OUTBREAK  OF  WAR.  [PART   I. 

A.  "  Prior  to  the  opening  of  hostilities  the  Japanese  troops 
landed  in  Korea,  the  Government  of  which  had  proclaimed  neu- 
trality." 

Suppose  the  above  be  an  exact  rendering.  Then  the  Rus- 
sian Government  in  this  point  committed  a  serious  mistake, 
both  logically  and  legally.  When  we  consider  that  rights  and 
obligations  as  a  neutral  Power,  as  far  as  International  Law 
is  concerned,  are  first  conceivable  after  hostilities  have  com- 
menced, "  to  land  in  neutral  Korea  prior  to  the  commencement 
of  hostilities  "  must  be  logically  and  legally  unintelligible,  for 
how  is  it  possible  that  in  time  of  peace  Korea  should  declare 
neutrality?  Or,  to  construe  it  with  much  greater  sympathy,' 
it  may  mean,  "It  is  against  the  provisions  of  the  Russo-Jap- 
anese Treaty  to  have  put  our  army  into  Korea  " ;  then  it  makes 
sense,  but  what  a  legal  inconsistency  to  blame  Japan  for  what 
they  had  already  perpetrated  themselves. 

B.  "  On  the  8th  inst.,  three  days  prior  to  the  declaration 
of  war,  a  Japanese  squadron  which  was  staying  at  Chemulpo, 
a  neutral  port  of  Korea,  unexpectedly  attacked  two  of  our 
warships  which  were  placed  in  such  a  position  that  they  were 
unable  to  know  of  the  rupture  of  negotiations,  owing  to  the 
fact  that  the  Japanese  had  intentionally  stopped  the  delivery 
of  our  telegrams  sent  through  the  Danish  cable,  and  had  de- 
stroyed the  telegraph  lines  owned  by  the  Korean  Government." 

As  repeatedly  explained,  Japan's  attitude  stands  justified 
by  the  provisions  of  International  Law  that,  when  once  an 
international  relationship  is  broken  off  there  is  a  freedom  to 
resort  to  war  de  facto.  As  for  the  difficulties  Russia  met  with 
in  her  telegraphic  communications,  it  is  of  no  concern. 

History  contains  several  cases  in  which  war  de  facto  took 
place  while  diplomatic  negotiations  were  going  on,  for  instance : 

On  the  23rd  of  November,  1806,  the  Russians  suddenly  in- 
vaded Moldavia,  and  there  took  possession  of  a  fort  during  a 
diplomatic  conference.  In  1807,  under  similar  circumstances, 
the  English  army  descended  upon  Egypt. 

On   the  4th   of   April,    1848,   the   Prussian   army   invaded 


CHAP.  I.,  SECT.  III.]      ON  THE  RUSSIAN  DECLARATION.  21 

Holstein,  while  at  Berlin  the  Danish  minister  was  negotiating 
with  Prussia. 

In  1850,  the  English  army  attacked  Greece,  without  break- 
ing off  their  international  relationship. 

Compared  with  these  precedents,  our  first  military  move- 
ment off  Seoul  should  be  deemed  anything  but  precipitate  and 
entirely  free  from  blame. 

Here  we  cannot  help  being  reminded  of  the  Chinese  declara- 
tion of  war,  in  the  Chino-Japanese  war,  in  which  we  find  this 
brilliant  clause :  "  Judge  of  our  surprise  then  when,  half  way 
to  Korea,  a  number  of  the  Wojen  ships  suddenly  appeared,  and 
taking  advantage  of  our  unpreparedness  opened  fire  .  .  . " ; 
and  further  of  the  fact  that  Eussia  then  was  one  of  those  civ- 
ilised Powers  who  made  great  fun  of  the  same  queer  words ! 

C.  "  The  Japanese  Government,  in  defiance  of  the  rules  of 
International  Law,  captured  several  of  our  merchantmen 
within  the  neutral  ports  of  Korea  at  the  moment  when  hostili- 
ties were  about  to  be  opened." 

As  for  the  explanation  on  this  point,  recourse  is  had  to  some 
of  the  ablest  spokesmen  of  our  naval  authorities  and  the  Coun- 
cillors of  Prize  Courts. 

D.  "  The  Japanese  Government,  through  the  Japanese 
Minister  at  Seoul,  declared  to  the  Korean  Emperor  that  Korea 
should  hereafter  be  placed  under  Japanese  administration,  and 
gave  a  warning  that  should  the  Emperor  disregard  this  decla- 
ration, Japanese  troops  would  occupy  the  Palace." 

This  point  has  been  touched  several  times  since  June, 
1903,  consistently  insisting  on  Japan's  lawful  seizure  of  Korea 
when  the  Japanese-Kussian  War  took  place,  and  referring  to 
the  capture  of  the  Danish  fleet.  (Cf.  Westlake,  Chap.  5;  Hall, 
Section  85;  the  author's  Essays  on  the  Outbreak  of  the  Russo- 
Japanese  War;  The  Manchurian  Problem.)  When  the  law 
sanctions  the  seizure  of  Korea  as  a  whole,  who  can  possibly 
say  anything  against  the  occupation  of  a  part  of  that  whole? 

E.  "  The  Japanese  Government,  through  the  French  Min- 
ister at  Seoul,  sent  a  note  to  the  Russian  Minister  there,  order- 


22  THE   OUTBREAK  OF  WAR.  [PART  I. 

ing  the  latter,  together  with  the  members  of  the  Kussian  Lega- 
tion, to  withdraw  from  Korea." 

Before  we  consider  the  legitimacy  of  this  protest,  its  re- 
liability should  be  settled.  According  to  the  official  paper  of  the 
15th  of  February,  the  Kussian  Minister's  retreat  from  Korea 
seems  to  have  been  of  his  own  accord.  If  any  compulsory  meas- 
ures had  been  recognised  as  taken  by  Japan,  it  was  quite  in  his 
power  to  have  absolutely  disregarded  them.  Once  more,  if  to 
the  Eussian  Minister  an  alternative  was  left  to  remain  or  not, 
the  retreat  must  have  been  of  his  own  free  will,  not  forced  by 
any  outside  compulsion.  Why  did  he  retreat  from  his  post,  where 
he  should  have  remained,  in  order  to  protest  against  Japan? 

In  this  way  the  Kussian  manifesto,  supposed  to  be  based 
upon  International  Law,  absolutely  lacks  legal  support,  and 
there  is  no  doubt  but  that  all  the  civilised  Powers  give  to  it  no 
more  than  a  mere  glance  of  ridicule. 

Sect.  IV.     When  Did  the  Russo-Japanese  War  Commence? 

As  to  the  question  of  the  time  the  war  broke  out  there  are 
different  views.  To  understand  the  question,  it  is  best  to 
briefly  describe  the  facts  relative  thereto,  and  for  that  purpose 
a  diary  of  the  beginning  of  the  war  is  quoted  here. 

The    6th   of   Feb.,   1904.      The   Japanese   Minister,    Mr. 
Kurino,  at  St.   Petersburg  handed  the  ultimatum   to 
Count  Lamsdorff. 
The  Japanese  fleet  started  from  Sasebo  port. 
The  Sai-yen  captured  the  Ehaterinoslav ,  the  vessel  of  the 

Kussian  volunteer  fleet. 
The  Hei-yen  captured  the  Mukden,  the  vessel  of  the  East 

China  Railway  Company,  Russia. 
The  8th,  at  11  p.m.  The  Japanese  torpedo  boats  attacked 
Port  Arthur  and  gave  serious  injury  to  the  Russian 
warships. 
At  noon  the  Koreetz  and  Variag  were  ordered  to  leave 
Chemulpo.  Fight  ensued  in  which  both  the  Russian 
warships  were  sunk. 


CHAP.  I.,  SECT.  IV.]      THE   DATE   OF  THE   OUTBREAK.  23 

The  opinions  concerning  the  above-mentioned  question  are 
as  follows : 

(1)  War  is  not  necessarily  opened  by  the  war  de  facto. 
The  Russo-Japanese  war,  therefore,  was  opened  by  the  sending 
of  the  ultimatum  by  the  Japanese  authority  to  the  Russian 
Government. 

In  the  decision  of  the  Higher  Prize  Court  on  the  Argun 
case  we  find  the  following  words: 

"  War  is  not  always  commenced  by  the  war  de  facto.  It 
can  be  opened  by  a  declaration  of  war  or  ultimatum,  through 
which  a  party  expresses  the  determination  of  fighting." 

(2)  The  war  began  when  the  Japanese  fleet  left  Japan 
with  the  object  of  attacking  the  Russian  fleet.  In  the  decision 
of  the  Sasebo  Prize  Court  on  the  Argun  case  we  find  the  fol- 
lowing sentence: 

"  The  war  commenced  when  the  Japanese  fleet  left  Sasebo 
with  an  intention  of  attacking  the  Russian  fleet." 

(3)  The  war  must  be  opened  by  the  declaration  of  war. 
This  is  actually  the  view  of  the  Russian  Government.  But 
it  is  quite  without  meaning  to  say  that  the  late  war  began  with 
the  declaration  made  by  belligerent  Powers,  which  was  in  real- 
ity issued  after  the  war  de  facto  at  Port  Arthur. 

(4)  War  may  be  opened  by  the  war  de  facto.  But  what 
constituted  war  de  facto  in  the  late  war?  There  were  several 
views  among  those  who  were  of  a  common  opinion  that  war  may 
be  opened  by  the  war  de  facto : 

A.  Some  said  that  the  attacking  of  the  Russian  fleet  in 
Port  Arthur  was  the  first  action  of  the  war  de  facto,  and  by 
this  action  the  war  commenced. 

B.  Some  said  that  the  capture  of  the  Russian  merchant- 
men was  the  very  fact  of  the  war  de  facto.  In  this  view  the 
capture  of  the  Ehaterinoslav  is  deemed  as  such;  that  is,  the 
taking  of  the  ship  as  a  Russian  private  vessel. 

The  author  thinks  this  view  is  not  correctly  substantiated 
from  two  points  of  view: 

1st.     The  Ehaterinoslav  cannot  be  deemed  a  private  vessel, 


24  THE   OUTBREAK   OF  WAR.  [PART  I. 

because  she  is  a  vessel  of  the  Russian  Volunteer  Fleet  Com- 
pany. 

Mr.  Hall  says: 

"  The  incorporation  of  a  part  of  the  merchant  marine  of  a 
country  in  its  regular  navy  is  of  course  to  be  distinguished 
from  such  a  measure  as  that  above  discussed.  A  marked  in- 
stance of  incorporation  is  supplied  by  the  Russian  volunteer 
fleet.  The  vessels  are  built  at  private  cost,  and  in  time  of 
peace  they  carry  the  mercantile  flag  of  their  country;  but  their 
captain  and  at  least  one  other  officer  hold  commissions  from 
their  sovereign,  they  are  under  naval  discipline,  and  they  appear 
to  be  employed  solely  in  public  services,  such  as  the  conveyance 
of  convicts  to  the  Russian  possessions  on  the  Pacific.  Taking 
the  circumstances  as  a  whole,  it  is  difficult  to  regard  the  use 
of  a  mercantile  flag  as  serious;  they  are  not  merely  vessels 
which  in  the  event  of  war  can  be  instantaneously  converted 
into  public  vessels  of  the  state,  they  are  properly  to  be  consid- 
ered as  already  belonging  to  the  Imperial  Navy." 

So  she  is  not  a  private  vessel. 

2nd.  Modern  International  Law  agrees  in  the  opinion 
that  war  exists  between  states,  but  not  between  individuals  of 
the  belligerent  states,  and  that  a  belligerent  state,  however, 
may  treat  an  individual  of  the  other  belligerent  as  one  who 
has  an  enemy  character  contaminated  by  the  National  enemy 
character.  So,  the  enemy  character  of  an  individual  of  one 
belligerent  state  is  the  effect  of  a  national  enemy  character. 
The  enemy  character  of  States  comes  first,  then  the  individual 
character  follows.  Now,  on  the  6th  of  February,  1904,  there 
was  no  war.  At  that  time  the  Japanese  fleet  detained  the  Rus- 
sian vessel  belonging  to  an  individual,  who  must  not  be  deemed 
as  an  enemy,  because  there  was  no  war.  How  can  this  deten- 
tion of  a  private  vessel  in  time  of  peace  cause  a  war  between 
states?     Effect  is  not  the  cause,  as  logic  shows. 

C.  Some  said  that  the  capture  of  the  Russian  public  vessel 
in  the  first  act  was  the  beginning  of  war  de  facto.  The  cap- 
ture of  the  EJcaterinoslav,  deeming  her  to  be  a  public  vessel 


CHAP.  L,  SECT.  IV.]   THE  DATE  OF  THE  OUTBREAK.        25 

of  Kussia,  is  mentioned  as  such  an  act.  This  view  was  insisted 
upon  by  the  author  from  the  very  beginning  of  the  late  war. 
Afterwards  this  view  was  also  actually  expressed  on  the  occa- 
sion of  the  Higher  Prize  Court  on  the  Mukden  case.  It  runs 
thus : 

"  On  the  way  to  the  zone  of  battle  the  Japanese  fleet  cap- 
tured the  Ekaterinoslav  of  the  Kussian  volunteer  fleet,  which 
was  a  vessel  liable  to  naval  service  in  time  of  war.  This  was 
nothing  more  than  the  carrying  out  of  the  hostile  intentions, 
and  any  capture  made  after  that  time  is  lawful/' 

On  the  whole,  the  author's  view  is  that  the  Kusso-Japanese 
war  was  commenced  by  the  capture  of  the  Ekaterinoslav,  as  she 
was  liable  to  be  appropriated  for  Naval  service  during  the  war. 


CHAPTER   II. 

THE  PROTECTION  OF  PERSONS  AND  PROPERTY 
OF  ONE  BELLIGERENT  WITHIN  THE  TERRI- 
TORY OF  THE  OTHER  ON  THE  OUTBREAK 
OF   WAR. 

Sect.  I.  The  Days  of  Grace  for  the  Enemy's  Subjects  and 
Their  Properties. 

As  to  the  treatment  by  one  of  the  belligerent  nations  of 
the  enemy's  subjects  staying  in  its  territory  at  the  outbreak 
of  war,  Powers  have  not  been  of  the  same  opinion.  In  1803, 
when  France  entered  into  hostile  relations  with  England,  Na- 
poleon I.  issued  an  imperial  decree  well  known  in  history  as  the 
Arrete  de  Napoleon,1  detaining  until  1814  all  the  Englishmen 
between  18  and  60  years  of  age,  while,  on  the  other  hand,  dur- 
ing the  Franco-Prussian  war,  quite  an  opposite  proceeding  oc- 
curred when  the  French  Government  expelled  all  the  Prussians 
then  staying  in  Paris  and  in  the  department  of  the  Seine.2 

The  theory,  however,  remains  unequivocal  amidst  such  an 
incongruity  of  facts  that  those  who  wish  to  be  engaged  in 
peaceful  occupations  may  be  suffered  to  remain  in  the  hostile 
nation  and  those  having  a  mind  to  leave  suffered  to  do  so, 
along  with  their  effects,  within  a  certain  number  of  days  of 
grace. 

Below  is  a  brief  historical  outline  on  the  subject. 

In  England,  as  early  as  the  fourteenth  century,  it  was  pro- 
vided by  the  Statute  of  Staples  (27  Ed.  III.  St.  2)  that  on 
the  outbreak  of  war  foreign  merchants  should  have  forty  days 
within  which  to  depart  the  realm  together  with  their  goods, 

1  Browning,  England  and  Napoleon  in  1803,  pp.  272-295. 

2  Washburn,  Recollections,  I. ,  p.  83 ;  Rolin  Jacquemyns,  La  Guerre  Actuelle,  pp.  33-36. 

26 


CHAP.  II.,  SECT.  I.]      PROTECTION   OF   ENEMY'S   SUBJECTS.        27 

with  an  extension  of  time  in  case  of  necessity.  A  similar  prac- 
tice seems  to  have  been  adopted  in  other  countries.  In  later 
times  the  privilege  of  safe  withdrawal  within  a  certain  period, 
ranging  from  six  months  to  a  year,  became  very  commonly  a 
matter  of  express  treaty  provision.  Finally,  it  became  a  gen- 
erally recognised  principle  that  subjects  of  either  belligerent, 
whether"  merchant  or  not,  found  within  the  territory  of  the 
other  should  be  at  liberty  to  depart  freely  within  a  period  rea- 
sonably sufficient  for  the  arrangement  of  their  affairs,  subject 
to  a  possible  exception  in  the  case  of  persons  whose  detention 
might  be  a  matter  of  great  political  or  military  importance. 
Modern  practices  appear  to  be  even  more  liberal,  inasmuch  as 
the  custom  has  been  inaugurated  of  allowing  the  enemy's  sub- 
jects to  continue  their  residence  during  their  good  behaviour. 
By  act  of  the  United  States  Congress,  1798,  the  President  is 
authorised  in  case  of  war  to  direct  in  what  cases  and  upon  what 
security  the  subjects  of  any  hostile  nation  shall  be  permitted 
to  remain  in  the  United  States.  By  the  same  act,  withdraw- 
ing subjects  are  to  be  allowed  such  reasonable  time  as  may  be 
consistent  with  public  safety  for  the  recovery,  disposal,  and  re- 
moval of  their  goods  and  for  their  departure. 

This  is  also  occasionally  a  matter  of  express  stipulation  by 
treaty.  Thus,  by  the  Treaty  of  1795,  between  Great  Britain 
and  the  United  States,  it  was  provided  that  in  the  event  of 
war  the  subjects  of  either  country  should  have  the  privilege  of 
remaining  and  continuing  their  trade,  so  long  as  they  con- 
ducted themselves  peaceably  and  committed  no  offence  against 
the  laws.1 

Where  such  permission  is  expressly  or  implicitly  given,  it 
would  seem  to  follow'  that  such  persons  are  entitled  to  the  same 
privileges  as  other  resident  aliens.  But  in  Great  Britain  it  has 
been  held  in  Alcinous  v.  Nigren,  that  an  alien  enemy,  even 
though  allowed  to  remain  in  British  territory,  cannot,  without 
express  license  from  the  Crown,  maintain  an  action  in  the  Eng- 
lish Courts  during  the  continuance  of  the  war. 

1  Hall,  A  Treatise  on  International  Law,  p.  392. 


28  THE   OUTBREAK  OF  WAR.  [PART   I. 

Apart  from  a  treaty,  moreover,  the  right  to  expel  an  enemy 
still  remains,  and  may  rightly  be  exercised  under  circumstances 
of  political  or  military  necessity.  On  the  outbreak  of  the 
Franco-Prussian  war  of  1870,  permission  was  at  first  given  by 
the  French  Government  to  subjects  of  the  enemy  to  remain 
in  France,  or  in  any  French  Colony,  so  long  as  their  conduct 
furnished  no  reason  for  complaint;  but  any  new  admission 
into  French  territory  was  made  a  subject  for  special  permission, 
which  was  only  to  be  exceptionally  granted;  thirty  days  were 
allowed  to  the  enemy's  ships  by  which  they  were  to  quit  France 
with  the  privilege  of  safe  conduct;  vessels  bound  to  French 
ports,  with  goods  on  French  accounts,  laden  before  the  decla- 
ration of  war,  were  to  be  at  liberty  to  enter  and  discharge  their 
cargoes,  with  the  privilege  of  safe  conduct  on  their  return 
voyage.  On  the  17th  of  September,  1870,  however,  a  decree 
was  issued  ordering  the  enemy's  subjects  to  quit  French  terri- 
tory within  three  days,  unless  specially  authorised  to  remain, 
as  already  referred  to.1 

With  regard  to  the  enemy's  property,  we  have  clearly  seen 
from  a  leading  case  that  the  Supreme  Court  of  the  United 
States  has  agreed  that  the  outbreak  of  war  gives  the  Sovereign 
a  right  to  confiscate  such  property,  although  it  goes  on  to  hold 
that  the  mere  declaration  or  existence  of  war  does  not  of  itself 
render  such  property  subject  to  confiscation.  This  may  be 
said  to  fairly  represent  the  existing  law  on  the  subject. 

When  the  citizens  of  a  hostile  state  are  allowed  to  remain, 
the  question  of  confiscation  of  property  is  not  likely  to  arise. 
The  express  or  implied  permission  to  stay  would  involve,  as  an 
almost  necessary  consequence,  the  according  of  the  same  gen- 
eral protection  to  their  property  as  that  afforded  to  other 
domiciled  aliens.  If  ordered  to  quit  the  belligerent  country, 
then  by  modern  usage  and  sometimes  also  by  express  treaty 
provision,  alien  enemies  would  be  entitled  to  a  reasonable  time 
for  withdrawal,  and  within  such  time  they  would  doubtless  be 
privileged  to  collect  and  take  with  them  such  part  of  their 

1  See  page  24. 


CHAP.  II. ,  SECT.  I.]      PROTECTION   OF   ENEMY'S   SUBJECTS.        29 

effects  as  they  could,  or  failing  that,  to  dispose  of  them  to 
other  persons.1 

I.     The  Japanese  Attitude  Towards  the  Enemy's  Subjects  in 
Her  Own  Territory  at  the  Outbreak  of  War. 

(1)     The  Chino- Japanese  War. 

To  take  an  example  from  the  Chino-Japanese  war,  the 
Imperial  decree  attached  below  was  issued  on  August  the  4th, 
1894.  (The  quotation  is  here  as  rendered  into  French  by 
Mr.  Ariga,  a  learned  friend  of  the  author,  who  prepared  the 
original  draft  of  the  same.)2 

Decret   imperial   du   4   aoiit   1894   relatif   a   la  protection  des    Chinois 
resident  au  Japon. 

Peu  apres  la  promulgation  de  la  declaration  de  guerre,  le  4  aoiit 
1894,  le  gouvernement  japonais  rendit  un  decret  relatif  a  la  protection 
des  Chinois  6tablis  au  Japon.  En  meme  temps,  il  invita  les  prefets  de 
l'Empire  a  exercer  une  surveillance  sur  leurs  administres  pour  qu'aucun 
acte  de  violence  ne  soit  commis  sur  les  Chinois.  L'Empire  du  Japon, 
se  conformant  aux  usages  des  peuples  civilises,  considerait  ainsi  la 
guerre  comme  un  fait  entre  Etats;  il  entendait  que  les  relations  entre 
individus  ne  fussent  point  entravees,  tant  qu'ells  ne  porteraient  pas 
atteinte  aux  interets  militaires.     Voici  le  texte  du  decret  imperial: 

Art.  I. — Les  sujets  chinois  pourront,  a  condition  de  se  conformer 
aux  prescriptions  du  present  decret,  continuer  a  demeurer  dans  toutes 
les  locality's  de  l'Empire  ou  il  leur  a  ete"  permis  de  rgsider  jusqu'a 
present,  en  jouissant  de  la  protection  de  leur  personne  et  de  leurs  biens, 
et  ils  pourront  s'y  livrer  a  toute  profession  pacifique  et  licite.  Toutefois, 
ils  devront  se  soumettre  a  la  juridiction  des  cours  et  des  tribunaux  de 
l'Empire. 

Art.  II. — Les  sujets  chinois  qui  doivent  rgsider  dans  l'Empire  en 
vertu  de  Particle  precedent  feront,  dans  le  delai  de  vingt  jours,  a  partir 
de  la  promulgation  du  present  decret,  une  declaration  au  prefet  du 
lieu  de  leur  residence,  pour  demander  l'enregistrement  de  leur  residence, 
de  leur  profession,  ainsi  que  de  leurs  noms  et  prenoms. 

Art.  III. — Le  prefet  remettra  un  certificat  d'enregistrement  aux  Chi- 
nois qui  auront  obtenu  l'enregistrement  prevu  a  Particle  II. 

Art.  IV. — Les  sujets  chinois  ayant  obtenu  l'enregistrement  indique  a 
Particle  II.  pourront  transferer  ailleurs  leur  residence.  Mais  ils  devront 
obtenir  du  preset  de  leur  residence  un  endossement  sur  le  certificat 
d'enregistrement,  et,  dans  les  trois  jours  aprSs  leur  arrivee  au  lieu  de 

1  Pitt-Cobett,  pp.  155-157.  2  Ariga,  La  Guerre  Sino-Japonaise,  pp.  23-25. 


30  THE   OUTBREAK   OF   WAR.  [PART   I. 

leur  residence  nouvelle,  ils  devront  faire  une  declaration  au  prefet  de 
ce  lieu,  afin  d'obtenir  de  nouveau  l'enregistrement  indique"  a  Particle  II. 

Art.  V. — Les  presets  pourront  faire  sortir  des  territoires  de  l'Empire 
les  sujets  chinois  qui  n'auront  pas  demande  1'enregistrement  6tabli  par 
le  present  decret. 

Art.  VI. — Les  sujets  chinois  qui  portent  atteinte  aux  interets  de 
l'Empire,  commettent  des  infractions,  troublent  l'ordre  et  la  paix  ou 
sont  suspects  de  ces  divers  faits,  outre  les  condamnations  qu'ils  encour- 
ront  en  vertu  des  lois  et  reglements,  pourront  encore  etre  expulses  des 
territoires  de  PEmpire  par  un  ordre  du  preset. 

Art.  VII. — Le  present  decret  est  applicable  aux  Chinois  employes  par 
les  autorites  ou  par  les  particuliers  de  l'Empire. 

Art.  VIII. — Le  present  avis  ne  prejudicie  pas  a  tout  ordre  emis  ou  a 
toute  mesure  prise  par  une  autorite  militaire  de  l'Empire,  a  l'egard  des 
Chinois  y  residant,  dans  un  but  qu'elle  se  propose  d'atteindre  dans  la 
guerre. 

Art.  IX. — Aucun  sujet  chinois  ne  sera  admis,  apres  la  promulgation 
du  present  decret,  a  entrer  dans  les  territoires  de  l'Empire  qu'en  vertu 
d'une  autorisation  speciale  du  ministre  de  l'interieur  demandee  par 
l'entremise  du  prefet. 

Art.  X. — Le  present  decret  entrera  en  vigueur  des  le  jour  m§me  de 
sa  promulgation. 

Le  4  aout  de  la  27  annee  de  Meiji  (1894). 

(Nom  et  cachets  impgriaux.) 
(Contre-signes)       Comte  Ito, 

President   du   Conseil; 
Comte  Inouye, 

Ministre  de  VInterieur; 
Mutsu, 

Ministre   des   Affaires   etrangeres; 

YOSHIKAWA, 

Ministre  de  la  Justice.1 

(2)     The  Russo-Japanese  War. 

At  the  outbreak  of  the  Kusso-Japanese  War  the  Department 
of  Foreign  Affairs  asked  its  Legal  Committee  for  an  opinion 
as  to  whether  a  similar  ordinance  as  that  given  during  the 
Chino- Japanese  war  was  to  be  issued  or  not;  to  which  question 
a  negative  answer  was  given  after  a  deliberate  consultation. 
Hence  short  instructions  addressed  to  the  local  and  municipal 
Governors  were  substituted  for  a  formal  Imperial  Ordinance. 

»  For  English  version,  see  the  author's  Case  on  International  Law  during  the  Chino- 
Japanese  War,  pp.  169-170. 


CHAP.  II.,  SECT.  I.]      PROTECTION   OF   ENEMY'S   SUBJECTS.        31 

Instruction  No.  1,  issued  by  the  Department  of  Home  Affairs  to 
the  governmental  officers,  prefectural  and  municipal,  and  governors  of 
Hokkaido  and  Formosa: 

Feb.    9th,   Meiji    37. 

Now  that  the  Russian  legation  and  consulate  are  about  to  be  with- 
drawn, special  care  should  be  taken  for  the  protection  of  Russian  sub- 
jects  staying  within  our  territory.       Cqunt  Taro  KatsurA) 

Minister  of  Home  Affairs. 

Further,  other  instructions  were  given  to  inform  the  gov- 
ernors, prefectural  and  municipal,  as  to  the  scope  of  protection 
to  be  exercised  over  the  Russian  subjects. 

Feb.  10th,  year  of  Meiji  37. 

It  being  a  matter  of  universal  acknowledgment  that  the  war  declared 
by  our  Imperial  Government  against  Russia  has  nothing  to  do  with  the 
Russian  populace,  toward  whom  we  have  never  cherished  anything  like 
enmity,  the  Russian  subjects  now  staying  in  our  country  shall  meet 
with  no  interference  to  their  remaining  in  Japan;  newcomers  shall  be 
welcomed,  and  even  their  living  here  shall  be  entirely  free  from  all 
restrictions.  Their  bodies,  lives,  honour,  and  effects,  therefore,  shall  be 
carefully  respected  according  to  our  registration,  so  that  they  may  be 
able,  without  any  fear,  to  engage  in  their  lawful  occupations  with  every 
claim  upon  all  the  protection  our  courts  afford.  In  spite  of  our  good 
will  toward  them,  however,  they  will  be  held  to  a  strict  account  for 
their  behaviour,  and  if  they  are  found  in  any  way  interfering  with  the 
military  or  naval  arrangements,  or  doing  anything  that  is  contrary 
to  the  best  interests  of  Japan,  or  if  they  are  assisting  in  any  way 
the  military  movements  of  their  country,  or  if  they  disturb  our 
peace,  order,  or  good  customs,  or  do  anything  contrary  to  our  wel- 
fare, they  shall  be  put  under  the  proper  restriction  imposed  by  our 
laws,  and  may  be  immediately  expelled  from  Japan.  Besides,  those 
who  lack  the  means  of  maintaining  themselves  without  relying  on  pub- 
lic assistance  are  likely  to  be  subject  to  a  similar  measure.  In  a  word, 
every  possible  advantage  shall  be  extended  to  them,  in  so  far  as  it  does 
not  conflict  with  our  own  national  interests. 

You  are  thus  cautioned  against  exposing  them  to  any  inconvenience, 
when  possible,  and  to  any  misunderstanding  on  the  part  of  our  populace 

at  larSe*  Count  Taro  Katsura, 

Minister  of  Home  Affairs. 

Following  are  some  of  the  main  reasons  we  deviated  on  this 
occasion  from  the  precedent  established  during  the  Chino- 
Japanese  war. 


32  THE   OUTBREAK   OF  WAR.  [PART   I. 

I.  Foreigners'  rights  and  interests  in  matters  concerning 
life  and  property  being  implicitly  respected  in  the  Japanese 
laws  (cf.  Civil  Code,  Section  II)  they  need  no  special  Imperial 
Ordinance  to  reassure  them,  and  any  such  step  would  merely 
be  duplicating  what  had  been  already  conferred.  An  Imperial 
Ordinance  was  thus  deterred,  and  a  similar  step  resorted  to 
during  the  Chino- Japanese  war  (the  Imperial  Ordinance,  No. 
I)  found  entirely  tautological. 

II.  A  register,  corresponding  to  the  Imperial  decree,  Arts. 
II- V.,  issued  in  the  time  of  the  Chino- Japanese  war,  was  also 
found  unnecessary,  the  names  and  nationalities  of  foreigners 
having  been  already  fully  registered  in  time  of  peace. 

III.  The  text  in  the  Imperial  decree  of  1894,  on  enforcing 
the  withdrawal  of  foreigners  if  found  necessary  with  a  view 
to  administrative  or  military  requirements,  was  considered  un- 
necessary.   The  reason  is  as  follows: 

There  is  no  law  in  Japan  containing  any  article  correspond- 
ing to  those  regulations  for  the  expulsion  and  admission  of 
foreigners.  But,  by  an  administrative  measure  Japan  can  en- 
force the  withdrawal  of  any  foreigner  whenever  circumstances 
require  it,  and  thus  in  such  a  case  can  expel  even  those  of  any 
other  nationality  as  well  as  of  Russia  by  administrative  meas- 
ures. Hence  the  addition  of  the  clause,  "  the  Russians  can  be 
expelled  whenever  military  or  administrative  measures  require 
it,"  may  be  made,  when  logically  construed,  to  mean  the  ex- 
emption of  all  foreigners  besides  Russians  from  expulsion,  even 
when  such  expulsion  is  urged  by  military  or  administrative 
necessity.  By  thus  enacting  a  new  law  implicitly  limited  to  Rus- 
sians, Japan  would  be  powerless  to  expel  other  foreigners,  even 
when  desirable. 

This  may  serve,  although  indirectly,  as  an  illustration  of  Jap- 
anese alertness  in  arriving  at  the  required  end  without  minute 
provisions  by  duplicate  and  elaborate  ordinance.  Again  we  may 
ascribe  it  to  the  growing  perfection  of  the  Japanese  legislation, 
and  congratulate  ourselves  in  the  thought  that  the  enemy's  sub- 
jects enjoyed  the  Japanese  generous  protective  method. 


CHAP.  II.,  SECT.  I.]      PROTECTION   OF  ENEMY'S   SUBJECTS.        33 

II.  The  Russian  Attitude. 

The  Eussian  treatment  as  regards  Japanese  subjects  staying 
in  Siberia  was  not,  to  say  the  least,  generous  or  even  fair, 
since  no  previous  notice  of  expulsion  had  been  given.  On  this 
point  Dr.  Lawrence  thus  declared  his  opinion: 

"  The  first  article  of  the  Russian  '  Rules,'  issued  on  February  28, 
soon  after  the  commencement  of  the  present  war,  laid  down  that  '  Japa- 
nese subjects  are  authorised  to  continue,  under  the  protection  of  Rus- 
sian law,  to  reside  and  to  follow  peaceful  callings  in  the  Russian  Empire, 
except  in  the  territories  forming  part  of  the  Imperial  Lieutenancy  in 
the  Far  East.  The  treatment  thus  meted  out  to  the  subjects  of 
Russia's  enemy  was  a  compound  of  the  new  liberality  and  the  old 
severity.  They  were  free  to  remain  in  all  parts  of  the  Empire  save  the 
provinces  ruled  over  by  Admiral  Alexeieff.  From  these  they  were  to  be 
expelled  at  once.  No  time  to  wind  up  their  affairs,  no  days  of  grace 
were  given  them.  They  were  obliged  to  leave  their  homes  and  avoca- 
tions immediately,  and  make  for  their  country  as  best  they  could,  in 
the  midst  of  the  turmoil  and  bitterness  caused  by  Japan's  sudden  attack. 
What  this  meant  in  the  way  of  robbery  and  cruelty  we  have  already 
described.  Though  things  righted  themselves  after  a  time,  the  prompt 
expulsion,  and  the  hardships  inflicted  on  the  first  refugees,  do  not  re- 
dound to  the  credit  of  the  Czar's  Government,  or  its  troops  and  sub- 
ordinate officials.  No  such  scenes  were  enacted  in  Japan.  The  enemy's 
officials,  when  they  left  the  country,  were  surrounded  in  every  circum- 
stance with  courtesy  and  honour;  while,  with  regard  to  those  Russians 
who  remained,  the  policy  of  protection  on  condition  of  registration, 
which  was  enunciated  by  an  Imperial  Ordinance  during  the  war  with 
China,  was  again  followed  on  the  present  occasion." 

On  the  other  hand,  the  Japanese  in  Asiatic  Eussia  and  Man- 
churia under  the  Eussian  command  underwent  unutterable  dif- 
ficulties while  withdrawing.  It  is  not  without  regret  that  jus- 
tice forces  the  publication  of  the  following  unhappy,  though 
actual  facts,  as  instances  of  the  disaster  Japanese  subjects  met 
with,  for  the  sake  of  humanity  and  the  amelioration  of  Inter- 
national Law: 

A    STORY   OF   RUSSIAN    INHUMANITY.1 

"  The  Jiji  publishes  the  statement  made  by  one  of  the  refugees  who 
have  just  arrived  in  this  country  by  the  German  steamer  Willehad.  We 
translate  it  in  substance  as  follows: 

1  The  Japan  Times,  4th  Dec,  1904. 


34'  THE   OUTBREAK   OF  WAR.  [PART   I. 

"  When  diplomatic  relations  between  Japan  and  Russia  threatened  to 
be  broken  off,  a  notification  from  Mr.  Kawakami,  our  Commercial  Agent 
at  Vladivostock,  was  transmitted  to  all  Japanese  residents  in  Siberia 
and  North  Manchuria,  inviting  them  to  proceed  to  Vladivostock  and  to 
embark  on  a  steamer,  which,  owing  to  the  situation,  would  be  the  last 
one  to  leave  for  Japan.  Prepared  as  we  were  for  such  a  contingency, 
this  notification  came  to  us  as  a  surprise.  Though  many  of  our  com- 
patriots at  once  availed  themselves  of  this  opportunity  to  return  home, 
there  were  many  who,  owing  either  to  their  limited  means  or  the 
distance  separating  the  places  of  their  residence  from  Vladivostock, 
were  prevented  from  withdrawing.  Only  seven  of  our  residents  of 
Blagovestchensk  succeeded  in  reaching  Vladivostock  in  time  to  embark 
on  the  steamer,  while  a  number  of  their  fellow  refugees,  who  left  Bla- 
govestchensk a  few  hours  later,  missed  the  opportunity,  the  vessel 
having  left  Vladivostock  by  the  time  they  reached  Nicholaevsk.  As 
for  our  residents  at  Khabarovsk,  some  100  succeeded  in  catching  the 
above  steamer,  but  the  rest,  63  in  number,  were  left  behind.  The  fort- 
night or  so  which  succeeded  4;he  outbreak  of  the  war  was  passed  in 
indescribable  anxiety,  when  a  notification  was  issued  concerning  the 
treatment  of  the  Japanese  in  the  Viceregal  districts.  As  the  result  of 
this  notification,  236  Japanese  who  remained  at  Blagovestchensk  were 
detained  in  five  unfurnished  buildings  which  were  guarded  by  sentinels, 
no  communication  being  allowed  between  the  refugees.  Others  of  our 
countrymen  who  were  in  other  places  received  similar  treatment.  On 
March  20  an  order  for  our  withdrawal  was  issued,  and  on  the  22nd  we 
started  for  an  unknown  destination.  To  cite  an  instance  of  Russian 
inhumanity,  63  of  our  compatriots  from  Khabarovsk  were  escorted  to 
Nicholaevsk  by  ten  troops  with  fixed  bayonets,  who  treated  them  as 
if  they  were  convicts,  and  during  the  24  hours'  journey  between  the 
two  towns  the  refugees  were  only  provided  with  tea.  They  found  at 
Nicholaevsk  25  of  their  fellow-refugees,  with  whom  they  were  detained 
for  three  days,  the  strictest  vigilance  being  kept  over  them.  It  is  true 
that  each  of  the  refugees  received  a  daily  allowance  of  nine  sen,  but  it 
was  not  more  than  the  allowance  for  convicts.  How  this  mere  pittance 
was  inadequate  to  support  us  may  be  understood  by  the  fact  that  two 
pieces  of  bread  cost  us  seven  sen.  Next  we  were  ordered  to  proceed 
to  Kharbin,  the  Russian  authorities  having  taken  the  trouble  to  hire 
carts  with  which  to  transport  our  effects  from  our  detention  rooms  to 
the  railway  station.  We  were  deeply  impressed  with  this  kind  conduct 
of  the  Russians,  but  we  were  soon  to  be  disillusioned.  On  arrival  at 
the  station  we  were  ordered  to  pay  for  the  carts,  and  as  our  remon- 
strances proved  of  no  avail  with  the  relentless  Russians,  we  were 
obliged  to  pay. 

"  After  journeying  three  days  we  reached  Kharbin.  Being  forbidden 
to  leave  the  train,  we  lived  in  the  carriages,  which,  by  the  way,  were 
not  ordinary  passenger  carriages,  but  those  used  for  the  transportation 
of  convicts.  At  Kharbin  there  were  11  Japanese  who  had  been  brought 
from   various  quarters.     Of  these,  10  were  women,  some  of  whom  had 


CHAP.  II.,  SECT.  I.]     PROTECTION  OF  ENEMY'S  SUBJECTS.         35 

been  detained  for  more  than  a  month.  A  woman  from  the  Korean 
frontier  had  been  outraged  by  the  Russian  guards  in  the  presence  of 
her  husband.  Several  other  women  had  also  been  subjected  to  similar 
treatment.  Five  of  these  women  were,  on  arrival  at  the  prison  at 
Kharbin,  forced  to  deposit  their  money,  which  individually  amounted 
from  200  to  500  yen,  with  the  jailers.  On  departure  the  women  received 
only  10  to  15  yen,  and  were  told  that  the  remainder  would  be  returned 
on  arrival  at  their  destination.  The  promise,  however,  was  not  ful- 
filled. We  were  transported  from  Kharbin  to  Chita,  and  were  impris- 
oned there  for  one  day  and  night,  during  which  time  we  were  given  a 
piece  of  brown  bread  and  a  quantity  of  soup.  The  following  day  we 
arrived  at  the  eastern  bank  of  Lake  Baikal  and  started  at  3  p.m.  on 
a  journey  of  45  versts  across  the  lake  by  horse  sleighs,  each  of  which 
seated  five  persons.  During  the  night  the  cold  was  so  intense  that  a 
four-months-old  child  was  frozen  to  death.  At  midnight  the  western 
bank  was  reached,  and  we  were  at  once  conveyed  into  railway  car- 
riages. All  the  men  and  women  suffered  terribly  from  the  cold  and 
hunger,  and  it  was  with  the  deepest  gratitude  that  we  received  a  gift 
of  bread  and  tea  from  a  Colonel  of  Gendarmerie  there.  We  were  then 
taken  to  Tomsk  by  a  branch  line  of  the  Siberian  Railway.  This  caused 
much  anxiety  among  us.  We  at  first  believed  that  we  were  being  taken 
to  St.  Petersburg  by  the  trunk  line  of  the  Siberian  Railway,  and  now 
we  were  at  the  terminus  of  a  branch  line,  and  imprisoned  there.  We 
asked  our  guards  for  information,  but  could  not  obtain  any.  Our  party, 
which  consisted  of  140  persons,  was  then  taken  to  a  place  called  Kar- 
pashova,  on  the  Obi,  and  200  versts  from  Tomsk.  There  we  were  de- 
tained for  a  month  and  a  half,  and  during  this  time  were  well  treated 
by  the  local  authorities.  We  were  afterwards  joined  by  230  refugees 
from  Blagovestchensk,  and  the  whole  party  was  then  taken  to  Perm, 
near  the  Ural  mountains. 

"  A  party  of  330  persons  was  then  distributed  among  Perm,  Solikamsk, 
and  Kungur,  where  we  were  permitted  to  work.  Some  were  employed 
in  gathering  the  wheat  crops,  others  as  coolies  for  the  transportation  of 
timber,  and  some  were  engaged  in  carrying  salt.  Owing  to  the  fact 
that  the  above  places  are  agricultural  districts,  we  experienced  great 
hardship  in  procuring  sufficient  food  and  clothing.  It  was  insufferable 
to  be  regarded  by  the  Russians  as  prisoners,  and  if  we  had  all  remained 
together  we  should  have  been  starved  to  death.  Governed  by  our  desire 
to  return  home,  we  had  appointed  a  committee  for  this  purpose,  whose 
quarters  were  then  at  Perm.  Through  the  medium  of  certain  Russian 
Jews,  whose  favour  we  had  managed  to  acquire,  we  were  able  to  com- 
municate with  the  United  States  Ambassador  at  St.  Peterburg  and  our 
Minister  at  Berlin,  pleading  for  our  immediate  release.  After  the  lapse 
of  a  month  and  a  half — that  is  to  say,  at  the  beginning  of  September — 
a  telegram  was  received  from  the  United  States  Ambassador  announcing 
that  arrangements  had  been  made  for  our  return  to  Japan,  and  that  a 
messenger  would  be  despatched  to  Perm  to  escort  us  home.  Needless 
to  say,  the  telegram  was  received  with  mixed  feelings  of  surprise  and 


36  THE   OUTBREAK  OF  WAR.  [PART  I. 

joy,  and  banzais  were  shouted  by  all  the  party.  Towards  the  end  of 
September  the  messenger  arrived  at  Perm,  which  place  the  party  left 
on  Sept.  25.  During  the  journey  homeward  the  party  was  joined  by 
a  body  of  women,  who  had  been  detained  in  a  temple  at  Tomsk.  On 
entering  Germany  the  party  was  received  by  our  residents  there,  as  well 
as  by  Germans,  who  rendered  every  possible  assistance.  The  impression 
made  on  our  mind  on  the  occasion  will  never  be  forgotten." 

On  the  29th  of  Feb.,  1904,  the  following  correspondence 
came  from  Tientsin: 

Concerning    the    Withdrawing   Japanese   Who   Arrived    at    Neivchwang 
After  the  Withdrawal  of  the  Japanese  Consul  at  Neicchwang. 

On  the  11th  instant,  on  the  withdrawal  of  the  Japanese  Consul  from 
Newchwang,  a  special  application  was  made  to  the  American  Consul  for 
the  protection  of  the  Japanese  subjects,  acquainting  him  at  the  same 
time  with  the  praiseworthy  proposal  made  by  Kaichi  Okada  and  Kai- 
chiro  Tanaka,  two  Japanese  proprietors  of  hotels  at  Newchwang,  to 
accommodate  all  the  Japanese  who  might  come  thither.  Later  on, 
howrever,  on  the  19th  instant,  these  two  Japanese  also  were  compelled 
to  leave  Newchwang  for  Tientsin.  From  them,  as  well  as  from  the  report 
from  the  American  Consul,  complete  information  as  regards  the  actual 
conditions  at  Newchwang,  after  the  withdrawal  of  the  Japanese  Consul, 
was  obtained.  On  Feb.  12,  after  the  withdrawal  of  the  Japanese  Con- 
sul, the  city  was  somewhat  upset,  since,  about  8  o'clock  in  the  morning, 
soldiers  were  seen  hurrying  about,  and  there  was  even  a  rumour  abroad 
that  the  Japanese  Squadron  was  preparing  for  an  attack,  which  caused 
not  a  little  sensation  among  Russian  women,  headed  by  the  wife  of 
the  chief  civil  magistrate. 

During  the  night  some  Russian  warships  kept  vigil  by  means  of  a 
searchlight. 

On  the  12th  more  than  140  Japanese  women,  who  came  thither  as 
refugees  from  Kharbin  and  other  districts,  were  detained  at  the  Yingkow 
station.  Three  of  these,  however,  by  name  Hisa  Yamada,  Kawasumi, 
and  Haru  Takagi,  successfully  contrived  to  escape,  and  resorted  to  the 
Japanese  Consulate,  which  they  found  already  vacant.  While  roam- 
ing" in  that  vicinity  they  were  noticed  by  the  American  Consul,  who 
delivered  them  to  Okada.  Except  one  who  was  left  behind,  Okada  sent 
them,  together  with  a  Chinese  employee,  to  meet  midway  the  women 
coming  from  Niu-chia-tun.  They  were  seized  upon  by  the  Russian 
authorities,  and  shared  the  same  confinement  as  many  other  women, 
after  having  undergone  various  sorts  of  hard  treatment,  which  was 
apparently  provoked  by  their  appeal  to  the  American  authorities.  As 
soon  as  informed  of  this,  Okada  appealed  to  the  American  Consul,  who 
in  turn  sought  explanation  from  Mr.  Grosse,  the  Russian  chief  civil 
magistrate,  and  received  the  telephone  answer  that  they,  the  women 


CHAP.  II.,  SECT.  I.]      PROTECTION   OF   ENEMY'S   SUBJECTS.        37 

detained,  were  coming.  Upon  this  Okada  again  despatched  the  before- 
mentioned  Chinese  employee  to  the  station.  He,  however,  found  there 
only  13  women  and  three  children,  the  others  having  been  already  sent 
back  to  Ta-shi-chao.  These  16  Japanese  thus  were  restored  once  more 
to  Okada,  to  start  on  the  following  day  for  Shan-hai-kuan.  According 
to  a  letter  from  the  American  Consul,  Alexeieff,  the  Governor-General  in 
the  Far  East,  was  said  to  have  issued  instructions  that  all  Japanese 
found  in  Manchuria  should  be  sent  to  Port  Arthur,  under  the  Russian 
protection,  and  this  seems  to  have  frustrated  the  efforts  of  the  American 
Consul,  who  demanded  of  Mr.  Grosse  the  serious  consideration  of  the 
attitude  Russian  soldiers  assumed  towards  our  subjects  withdrawing  from 
the  field,  and  arranged  for  the  immediate  delivery  of  the  Japanese  sent 
to  Da-si-cho  up  to  that  time,  in  number  about  100. 

On  the  12th  two  women  succeeded  in  their  escape  from  Ta-shih-chiao, 
and,  disguising  themselves  in  the  Chinese  costume,  went  back  without 
molestation  to  Okada  at  Newchwang,  when  the  American  Consul  was 
paying  a  visit,  and  from  these  refugees  facts  were  learned  contrary  to 
what  the  Russian  chief  civil  magistrate  had  pretended,  and  of  what 
persecutions  their  fellow-countrymen  were  suffering. 

On  the  15th,  being  informed  that  two  Japanese  women  were  lurking 
in  Yunraiyenkui,  the  American  Consul  asked  Okada  to  accompany  him 
thither  to  take  them  back.  The  two  women,  by  name  Chika  Motomura 
and  Sada  Urazono,  were  found  there  as  reported  and  were  persuaded 
by  the  American  Consul  to  speedily  withdraw  themselves;  but  failed  at 
last  to  keep  their  promise. 

The  same  night,  while  Danburg,  a  Norwegian,  whose  tenant  Okada 
was,  while  paying  a  visit  to  Okada,  two  Russian  officers,  followed  by 
about  30  soldiers,  each  armed  with  drawn  sword  or  bayonet,  rushed 
in,  breaking  through  the  front  door,  plundered  the  property  and  furni- 
ture, bound  Okada,  Kaichiro  Tanaka,  and  Tokujiro  Shigematsu,  giving 
to  the  last-mentioned  a  stab  on  the  head,  and  also  pulled  out  one  Chitose 
Takeshita,  who  was  lurking  in  the  adjoining  room.  Okada  was  pre- 
vented by  the  Russian  intruders  from  letting  Danburg  go  to  inform  the 
American  Consul  of  the  matter.  Then,  addressing  in  English  Mrs.  Hunt, 
who  was  looking  out  from  a  neighbouring  window,  he  asked  her  to  send 
an  immediate  despatch  to  the  American  Consul.  Thus  he  presently  got 
the  American  Consul  to  come  to  him,  along  with  another  American.  The 
interview  between  the  Consul  and  the  Russian  officers  lost  much  of  its 
purport  because  they  did  not  understand  each  other's  language.  The 
Russians  seem  to  have  insisted  on  the  absence  of  the  Japanese  Consul, 
and  the  American  Consul  reprimanded  their  unlawful  conduct,  explain- 
ing that  he  was  invested  with  the  same  right  as  the  Japanese  Consul. 
Finally  the  police  authorities  were  brought  in,  and  set  the  bound  men 
at  liberty.  Subsequently  the  American  Consul  spoke  with  the  Russian 
chief  civil  magistrate  regarding  the  lawless  intrusion.  The  latter,  after 
examining  the  officers  concerned,  expressed  his  deep  regret  over  the 
affair,  and  suggesting  as  its  motive  a  rumour  that  a  number  of  Japanese 
residents  were  preparing  for  an  attack.     This  apology,  however,  must 


38  THE   OUTBREAK   OF  WAR.  [PART   I. 

be  of  little  weight  when  the  fact  is  considered  that  at  that  time,  accord- 
ing to  the  report  of  the  American  Consul,  nearly  3000  Russian  troops 
were  stationed  in  and  about  Newchwang,  while  our  subjects  there  were 
entirely  unprovided  with  arms  and  explosives.  The  purpose,  therefore, 
which  the  marauding  Russians  had  before  them  must  have  been  ex- 
pressly the  plunder  of  property.  Next  day  Okada  wrote  out  an  invoice 
or  statement  of  damages  suffered.  In  the  afternoon  of  the  same  day 
the  American  Consul  declared  that  the  Japanese  would  no  longer  be 
safe  in  the  city;  so  that,  about  4  o'clock,  all  the  Japanese,  escorted  by 
the  American  Consul  and  a  Russian  soldier,  withdrew  themselves  as  far 
as  the  Ho-pe  Station. 

The  facts  thus  far  enumerated  were  obtained  from  a  statement  of 
Kaichi  Okada  and  the  report  of  the  American  Consul.  The  following 
further  information  concerning  the  Japanese  sent  to  Che-foo  via  Port 
Arthur  is  from  the  Imperial  Consul  at  Che-foo. 

By  the  way,  Mr.  Miller,  the  American  Consul  at  Newchwang,  has 
always  remained  a  great  friend  of  ours,  and  his  efforts  in  protecting 
the  right  of  our  subjects  were  incalculable,  particularly  since  the  with- 
drawal of  the  Japanese  Consulate.  We  cannot  but  regard  his  activities 
with  unmitigated  satisfaction. 

Although  parallel  cases  in  which  the  rights  of  life  and  prop- 
erty were  trampled  upon  are  by  no  means  far  to  seek,  we  shall 
forbear  the  multiplying  of  instances;  for  nothing  is  more  alien 
to  the  purpose  of  the  present  work  than  to  record  a  mass*  of 
complaints. 

Sect.  II.  The  Protection  of  Catholics  and  Catholic  Mis- 
sionary Institutions  in  the  Far  East  by  the  Japanese  Gov- 
ernment. 

During  the  Russo-Japanese  War  the  Japanese  Government 
made  great  effort  in  protecting  the  subjects  and  citizens  of 
neutral  Powers  in  Manchuria,  Korea,  and  other  places  which 
were  under  the  Japanese  military  authorities.  It  is  of  interest 
to  foreigners  to  have  the  facts  of  this  protection  described  in 
detail,  and  here  is  given  one  case  concerning  the  Catholics  and 
Catholic  Missionary  Institutions  in  the  Far  East. 

On  the  13th  of  Feb.,  1904,  the  Politische  Correspondenz, 
published  in  Germany,  contained  an  article,  in  which  it  stated 
that  "it  was  well  known  that  the  Pope  had  applied,  through 
the  Nuncio  in  Paris,  to  the  Japanese  Government,  for  the  pro- 


CHAP.  H.,  SECT.  II.]   PROTECTION  OF  CATHOLICS.  39 

tection  of  Eoman  Catholic  Missionaries.  The  Catholic  Mission- 
aries in  Japan,  Korea,  and  Manchuria  are  nearly  all  of  French 
nationality,  and  while  there  are  about  90,000  Catholics  in 
Japan,  those  living  in  Korea  and  Manchuria  number  84,000." 

It  is  true  that  the  Nuncio  in  Paris  made  the  above  request 
to  Mr,  Motono,  the  Japanese  Minister  there,  on  the  8th  of 
Feb.,  and  that  Mr.  Motono  transmitted  the  request  to  the 
Japanese  Government.  The  Japanese  Government  replied 
without  hesitation  that  proper  protection  would  be  extended  to 
the  lives  and  properties  of  the  Catholics  and  Catholic  Mis- 
sionary Institutions  as  far  as  lay  within  the  power  of  the 
government.1 

On  the  12th  of  Feb.,  1904,  Minister  Motono  handed  the 
following  note  to  the  Nuncio: 

AIDE  ME  MOIRE. 
Le  Government  Japonais,  deferent  au  d£sir  exprime"  par  S.  Exc. 
Monseigneur  le  Nonce  Apostolique  an  nom  du  Saint  Siege  au  Ministre 
du  Japon  a  Paris,  ne  manquere  pas  de  prendre  toutes  les  mesures 
necessaires  pour  proteger  la  vie  et  les  biens  des  Catholiques  ainsi  que 
les  institutions  Catholiques  en  tant  qu'il  se  trouverait  dans  les  limites 
de  Pautorite  du  Gouvernement  Imperial  du  Japon. 

On  the  17th  the  following  answer  was  sent  by  the  Nuncio: 

Paris,  le  17  Fevrier,  1904. 
Nonciature  du  Saint  Si§ge  Apostolique  en  France. 

Monsieur  le  Ministre  : 

M'etant  empresse  de  transmettre  au  Gouvernement  du  Saint  Siege 
I 'Aide-Memoir -e  que  Votre  Excellence  a  bien  voulu  m'adresser  le  11 
courant,  concernant  le  protection  des  Catholiques  dans  toute  l'gtendu 
de  PAutorite"  du  Gouvernement  Imperial  du  Japon,  j'ai  Phonneur,  a 
present,  de  vous  faire  savoir  que  Sa  Saintete  le  Pape,  Pie  X.,  mon 
Auguste  Souverain,  en  a  Sprouve"  une  veritable  satisfaction.  C'est 
pourquoi  il  me  charge  de  vous  prier  Monsieur  le  Ministre,  de  faire 
parvenir  ses  plus  vifs  remerciements  a  Sa  Majeste"  PEmpereur  du 
Japon  et  tl  son  gouvernement. 

Le  Souverain  Pontife  aimerait,  en  m§me  temps,  a  faire  exprimer 
a    Sa   Majeste"    Impgriale   toute   sa    gratitude    pour    la    belle    response 

1  Ariga's  La  guerre  Russo-Japonaise  au  point  de  vue  continental  et  le  droit  interna- 
tional, 1907,  pp.  469-473. 


40  THE   OUTBREAK   OF   WAR.  [PART   I. 

qu'elle  a  bien  voulu  dormer  a  la  lettre  de  faire  part  de  son  avenement 
au  Tr6ne  Pontifical. 

De  mon  c6te,  je  tiens,  Monsieur  le  Ministre  et  cher  collegue,  u 
vous  offrir  l'expression  de  ma  reconnaissance  tres  sincere  pour  le 
bienveillant  accueil,  que  vous  avez  fait  et  que  vous  avez  obtenu  de 
la  part  de  votre  gouvernement  a  ma  priere  du  8  courant;  et  je  suis 
heureux  de  renouveler  a  Votre  Excellence  les  assurances  de  tout  ma 
haute  et  d6ferant  consideration. 

(Sign6)     B.  Lorenzell, 
Nonce  Apostolique. 
A   Son   Excellence   Monsieur   Motono, 

Env.  Extr.  et  Ministre  Plenip.  du  Japon,  Paris. 

The  Japanese  Government  put  forth  its  best  efforts  in  car- 
rying out  the  wishes  of  the  Nuncio. 

The  following  are  the  names  of  the  Catholic  missionaries 
who  remained  in  Manchuria  under  the  Japanese  protection: 


List  of  the   Catholic  Missionaries  in  the  Province  of  Mukden.1 

Urbain  M.  Remise,  resident  a  Tchi-a-keon  sous  prefecture  Sion  Yen. 
Vincent   Sage  Yangkouan  Kaiping 

etc.  etc.  etc. 


Chinese   Missionaries. 

Barthelemy  Hia 

Kaoukiatsai 

Liao-yang 

Laurent  Hia 

Chen  Yang 

Fung-cheng 

etc. 

etc. 

etc. 

These  missionaries  and  the  adherents  of  the  Catholic 
Church,  9000  in  number,  were  protected  by  the  Japanese  au- 
thorities. 

Something  must  be  added  about  the  missionaries  who  left 
Manchuria  and  other  places,  which  were  under  the  military 
occupations  of  both  belligerents.  The  following  is  the  corre- 
spondence received  from  Newchwang,  China,  under  the  date 
of  Sept.  19,  1904: 

"There  were  in  Manchuria  many  English,  French,  Danish,  and 
other  missionaries  who  took  refuge  in  Newchwang  and  Tientsin  at 
the  outbreak  of  the  war  and  who  were  wishing  to  return  to  their 
posts." 

1  There  was  a  long  list,  but  it  is  omitted  here. 


CHAP.  II.,  SECT.  II.]      PROTECTION   OF   CATHOLICS.  41 

Their  desires  being  known  to  the  Japanese  Government,  we 
made  inquiries  as  to  what  Russia  was  doing  in  the  matter. 
The  Eussian  authorities  in  the  field  protected  those  mission- 
aries who  remained  at  their  original  posts,  but  those  mis- 
sionaries who  had  quitted  their  posts  were  not  allowed  to 
return. 

The  Japanese  Government,  however,  having  the  intention 
of  doing  all  in  their  power  for  the  missionaries,  after  some 
consultation  between  the  Foreign  and  Military  Departments, 
decided  that  the  Christian  missionaries  should  be  allowed  to 
return  to  the  places  where  they  were  before  the  war,  provided 
those  places  were  under  the  Japanese  military  authorities,  who 
would  fully  realise  their  responsibility,  and  who  were  perfectly 
able  to  protect  them. 

On  the  6th  of  Oct.,  1904,  the  military  authorities  issued 
the  following  notice : 

The  Christian  missionaries  who  left  the  interior  of  Manchuria 
may  return  to  their  original  places  if  said  places  are  within  the 
precincts  of  Liao-yang  and  Haitcheng;  but  permission  is  not  given  to 
live  outside  the  fortifications  on  account  of  possible  danger. 

These  are  the  facts  concerning  the  protection  of  the  Catho- 
lics and  Catholic  Missionary  Institutions,  but  it  must  not  be 
understood  that  Japan  favoured  only  the  Catholics.  In  fact, 
Japan  endeavoured  to  protect  all  nationalities  within  their 
power,  even  the  Russians,  whatever  their  religion. 

It  seems  rather  strange  to  foreigners  that  there  is  so  little 
animosity  in  Japan  between  religious  sects,  the  people  not  being 
overzealous  in  these  matters.  The  Japanese  Government  treats 
the  different  sects  alike,  provided  they  do  nothing  inconsistent 
with  the  safety  of  the  State.  So,  during  the  war,  the  Russian 
Bishop  Nicholai  remained  in  Japan,  and  safely  carried  on  his 
religious  work. 

In  conclusion,  it  is  a  rather  regrettable  fact  that  the  Nuncio 
made  of  Japan  the  above  request,  because  had  he  under- 
stood the  condition  of  Japanese  civilisation  he  would  not  have 


42  THE   OUTBREAK  OF  WAR.  [PART   I. 

found  it  necessary.  The  making  of  such  a  request  by  these 
eminent  men  clearly  shows  that  there  are  still  many  people 
who  are  not  well  acquainted  with  the  religious,  social,  and  legal 
conditions  of  Japan. 

In  1871  the  Edict  against  Christianity  was  removed,  free 
preaching  was  allowed,  and  religious  liberty  firmly  guaranteed 
by  the  Japanese  Constitution,  promulgated  1889.1 

Thus  all  people  in  Japan,  either  native  or  foreign,  have 
full  liberty  of  religious  belief  in  times  of  both  peace  and  war. 

On  the  whole,  speaking  from  the  social  point  of  view  and 
from  that  of  International  Law,  Japan  acted  on  the  principles 
of  true  ethics  and  law.  Japan  as  a  nation  is  very  law-abiding, 
and  is  also  very  sincere,  and  it  is  very  desirous  that  the  real 
condition  should  be  fully  known  and  appreciated  by  the  people 
of  the  Great  West — both  in  America  and  Europe. 

Sect.  III.  The  American  Protection  of  Japanese  Interests 
in  Russian  Territories  at  the  Outbreak  of  the  War. 

Eussia  and  Japan  are  now,  after  the  great  struggle,  very 
friendly  with  each  other,  and  France  who,  during  the  late  war 
so  sympathetically  conveyed  her  feelings  of  friendship  to  Eus- 
sia, has  now  concluded  an  entent  with  Japan.  All  disagree- 
able things  are  now  passed,  and  the  great  Powers  of  the  world 
are  all  at  present  on  good  terms,  forgetting  what  they  felt  dur- 
ing the  war.  At  this  time  it  is  fitting  to  bring  to  light  what 
the  United  States  did  for  Japanese  subjects  in  protecting  them 
during  the  said  war.  This  may  be  done  without  irritating 
any  country  of  the  world.  On  the  contrary,  it  may  prove  how 
benevolent  the  United  States  is,  and  how  righteous  she  is  from 
the  point  of  view  of  International  Law,  in  protecting  the  Japa- 
nese non-combatants  who  were  in  Eussian  territories  and  in  the 
districts  occupied  by  the  latter. 

On  the  7th  of  Feb.,  1904,  Baron  Komura,  the  Japanese 
minister  of  Foreign  Affairs,  sent  a  telegram  to  Mr.  Takahira, 
the  Japanese  minister  at  Washington,  instructing  him  to  see  the 

»  Sidney  L.  Gubick's  Evolution  of  the  Japanese,  p.  327. 


CHAP.  II.,  SECT.  Ill  J      AMERICAN  PROTECTION  OF  JAPANESE.     43 

Secretary  of  State  as  soon  as  possible  and  to  ask  him  if  the 
United  States  Government  would  permit  their  embassy  at  St. 
Petersburg  and  their  consulates  in  various  places  in  Russia  to 
assume  charge  and  protection  of  Japanese  subjects  and  interests 
in  Eussia;  he  instructed  him  to  add  that  the  Japanese  Govern- 
ment retains  a  lively  appreciation  of  the  friendly  offices  extended 
to  them  by  the  United  States  during  the  Chino-Japanese  war, 
and  that  they  venture  to  hope  that  nothing  will  prevent  the 
United  States  from  acting  for  them  in  a  similar  capacity  in  the 
present  instance.1 

Mr.  Takahira  carried  out  the  instructions,  to  which  Mr. 
John  Hay,  the  Secretary  of  State,  replied  that  the  United 
States  Government  was  willing  to  do  everything  in  its  power 
to  take  charge  of  the  Japanese  interests  in  Eussia  as  requested, 
and  was  sending  instructions  to  the  United  States  Ambassador 
to  Eussia  to  ascertain  if  that  arrangement  was  agreeable  to 
the  Eussian  Government. 

Below  is  the  answer  of  the  United  States  Government.1 

Mr.  John  Hay  to  Mr.   Takahira, 

Feb.  9,  1904. 
Dear  Mr.  Takahira: 

I   learn  from  our  Ambassador  at  St.  Petersburg  that  the  Minister 

of  Foreign  Affairs  has  informed  him  that  the  Emperor  of  Russia  sees 

no  objection  to  our  representatives  looking  after  Japanese  interests  upon 

the  withdrawal  from  Russia  of  all  diplomatic  and  consular  representa- 

tives  of  Japan.  Very  sincerely  yourSj 

(Signed)     John  Hay. 

Now  to  establish  by  facts  the  friendly  attitude  the  United 
States  of  America  assumed  for  the  Japanese  interests  in  vari- 
ous parts  of  the  Eussian  territory. 

I.  The  Withdrawal  of  the  Japanese  from  the  Vladivostock 
Districts. 

According  to  an  imperative  instruction  of  the  Eussian  Gov- 
ernment, not  a  single  Japanese  was  allowed  to  remain  in  Siberia 
and  Manchuria,  so  that  those  Japanese  found  there  at  that  time 

I  Foreign  Relations,  1904,  p.  430. 


44  THE   OUTBREAK   OF   WAR.  [PART   I. 

were  forced  to  promptly  fly  for  their  lives,  without  having  time 
to  dispose  of  their  properties,  not  only  immovable,  but  also 
movable.  It  must  be  remembered  that  in  the  course  of  this 
rather  hazardous  withdrawal,  they  owed  much  to  the  never- 
failing  kindness  of  the  American  authorities. 

Most  of  the  Japanese  found  in  Siberia  and  Manchuria  took 
their  departure  through  Vladivostock,  while  some  came  back 
through  Newchwang,  some  through  the  European  continent, 
and  some  were  detained  in  Port  Arthur. 

The  number  and  whereabouts  of  the  Japanese  found  in 
1904  within  the  command  of  the  Commercial  Agent  in  Vladi- 
vostock are  as  follows,  according  to  the  report  dated  January 
17th,  1904,  by  Mr.  Kawakami,  the  Commercial  Agent: 


Places. 


Round  Num- 
bers. 


Vladivostock 

Nicholae  Usurieski 

Khabarovsk 

Nicholaevsk 

Blagovestchensk 

Chita 

Irkutsk 

Stryetensk 

Others 

Along  the  Line  of  the  East. 
China  Railway  in  North . . . 
Manchuria 

Total 


Two  thousand  three  hundred  and  twelve  of  the  above  came 
back  on  board  the  Afridge,  an  English  ship  which  had  sailed  at 
1  p.m.,  February  6th,  1904,  and  landed  at  the  Port  of  Tsuruga, 
Japan.  Again  on  the  twelfth  of  the  same  month,  Mr.  Kawa- 
kami, the  commercial  agent,  sent  back  1511  Japanese,  which 
was  the  maximum  number  to  which  he  could  afford  any  relief 
on  board  the  Batavia,  a  German  ship,  to  land  at  the  Port  of 
Moji.  Those  on  board  the  above  English  ship  were  mostly  from 
Vladivostock  and  its  vicinity,  and  those  on  board  the  German 
vessel,  from  Siberia  and  Manchuria. 


CHAP.  II.,  SECT.  III.]     AMERICAN  PROTECTION  OF  JAPANESE.     45 


Owing,   however,   to   the   shortness   of   notice   given,   many 
were  still  left,  of  whom  the  following  were  ascertained: 


Placfs. 


Still  Remaining. 


In  Siberia. 


Vladivostock. 


Nicholae  Usurieski 

Novikievski 

Fung-chung ....... 

Blagovestchensk .  . 


Nicholaevsk 

Stryetensk. . 
Nerchinski  . 

Chita 

Irkutsk 

Kiachta 

Tomsk 


In  Manchuria. 

Boglanichinaya 

Mukum 

Hantaheiza 

Hananpo 


Kharbin. 


Jaranlen 

Chikhal 

Buchata 

Hailan , 

Taimayuf 

Other  Districts, 
Total. , 


50        j  21  of  them  being  pris- 
\      oners. 


43 
4 

285 

258 

17 

17 

2 

85 

1 

5 


10 
1 
4 

10 

un- 
certain 

15 
30 
20 
52 
3 
100 


j  Wives  or  concubines  to 
(      Chinese. 


Withdrawal  forbidden 
because  the  absence 
of  communicative 
system. 


Nearly  150  of  them 
being  said  to  be  on 
their  way  towards 
Newchwang. 


986 


The  solicitude  of  the  Japanese  Government,  felt  for  those 
still  remaining  in  the  enemy's  land,  who  must  surely  have  been 
greater  in  number  than  the  known  list  showed,  was,  however, 
largely  relieved  by  the  careful  protection  the  American  authori- 
ties afforded  them. 

The  document  below  throws  light  on  this  point: 


Sir: 


Mr.  John  Hay  to  Mr.  Talcahira. 

Washington,  March  8th,  1904. 


The   United  States  Ambassador  at  St.  Petersburg  has   sent  to   the 
Department    copies   of   telegrams    received   by   him   from   Mr.    Greener, 


46  THE   OUTBREAK  OF  WAR.  [PART  I. 

the  United  States  Commercial  Agent  in  Vladivostock,  dated  February 
24th. 

In  a  telegram  of  February  15th  Mr.  Greener  says  that  no  private 
or  cipher  telegrams  are  being  transmitted;  that  the  Japanese  commer- 
cial agent  left  Vladivostock  on  the  13th  ultimo;  that  the  British  repre- 
sentative was  leaving  on  the  15th;  and  the  Japanese  agent  asked  the 
American  agent  to  occupy  the  Japanese  agency. 

In  another  telegram  of  the  15th  Mr.  Greener  says  that  2500  Japanese 
left  Vladivostock  on  the  6th  and  that  1500  would  leave  with  the  Japa- 
nese agent. 

Under  date  of  the  19th  Mr.  Greener  says  that  117  Japanese  arrived 
at  Vladivostock  on  that  day,  and  that  he  had  undertaken  to  send  them 
away  on  the  following  day.    Their  destination  is  not  stated. 

Under  date  of  the  24th  Mr.  Greener  says  that  the  Folmina  left  on 
the  23rd  with  194  Japanese  collected  since  the  18th  from  Manchuria; 
that  20  women  wished  to  stay,  but  that  the  commandant,  at  Mr. 
Greener's  request,  sent  all  away,  as  agreeable  to  our  request. 

(Signed)     J.  Hay. 

On  March  9th,  1904,  Mr.  Takahira,  the  Japanese  Minister 
at  Washington,  sent  a  response,  expressing  on  behalf  of  his 
government,  cordial  thanks  for  the  steps  taken  by  the  United 
States. 

In  fact,  throughout  the  war  the  American  representatives 
spared  no  effort  in  protecting  the  interests  of  Japanese  sub- 
jects. 

II.     The  Withdrawal  of  the  Japanese  from  Port  Arthur. 

Just  as  the  diplomatic  negotiations  between  Russia  and 
Japan  were  found  to  be  utterly  hopeless,  Mr.  Kokichi  Midzuno, 
the  Japanese  Consul  at  Chefoo,  whose  ability  was  well  known, 
chartered  an  English  ship  of  2000  tons,  and  set  out  on  the  7th 
of  February  to  make  a  circuit  through  Port  Arthur  and  Dalny 
in  forty-eight  hours.  In  this  way  730  persons  were  put  outside 
the  dangers  of  the  war. 

This  step  of  Mr.  Kokichi  Midzuno  must  have  been  really 
wonderful,  when  it  is  considered  that  it  was  just  before  the 
Japanese  squadron  of  torpedo  boats  made  its  daring  attack 
there.  The  Rasbar,  the  English  ship  which  had  arranged  to  take 
Japanese  refugees  to  Japan,  arrived  at  Chefoo  with  no  passen- 


CHAP.  II.,  SECT.  III.]     AMERICAN  PROTECTION  OF  JAPANESE.     47 

gers  on  board.  The  captain  told  that  on  the  8th  of  February, 
when  the  ship  was.  waiting  for  Japanese  passengers,  Kussian 
authorities  took  all  of  them  away  who  were  on  board  the  ship, 
and  that  no  others  were  allowed  to  embark.  She  was  detained 
there  without  reason  until  February  11th  at  2  p.m. 

The  Japanese  Government  upon  this,  under  date  of  Feb- 
ruary 13th,  asked  the  United  States  Government  to  request  the 
Eussian  Government,  through  her  ambassador  at  St.  Peters- 
burg, to  allow  Japanese  subjects  to  leave  for  Japan  by  the 
earliest  steamer  of  a  neutral  country. 

The  British  steamer  Wen-chow  arrived  on  February  15th 
from  Port  Arthur  with  342  Japanese  subjects  of  every  descrip- 
tion, among  whom  were  100  from  Kharbin  and  vicinity.  It  is 
related  that  more  than  100  women  were  separated  from  men 
at  Tashichao,  and  were  said  to  have  been  sent  to  Newchwang. 

The  following  facts  we  should  not  omit,  as  the  instances  of 
the  protection  of  Japanese  subjects  by  the  United  States: 

On  February  13th,  Consul  Segawa  received  telegraphic  in- 
formation from  Captain  Kawasaki  at  Chin-chow  that  he  had 
heard  from  a  group  of  Japanese  fugitives,  women  and  children 
only,  who  were  withdrawing  from  Newchwang  for  Shan- 
hai-kan,  and  who  had  with  difficulty  escaped  from  the  Eussians 
at  Tashichao;  that  about  250  Japanese  on  their  way  from 
Chita,  Kharbin,  Kundalin,  and  Perm  to  Newchwang  were 
stopped  for  some  time  at  Mukden,  and  again  at  Tashichao, 
where  they  received  most  cruel  treatment,  and  were  conveyed 
to  Port  Arthur.  Consul  Segawa  sent  a  telegram  to  the  United 
States  Consul  at  Newchwang  in  confirmation. 

On  February  14th  United  States  Consul  at  Newchwang 
had  asked  the  Eussian  authorities  there  to  hand  the  Japanese 
over  to  him,  but  the  Eussian  authorities  answered  that  the  pro- 
tection of  Japanese  remaining  in  Manchuria  rested  with  Eus- 
sia,  and  all  Japanese  in  Manchuria  had  been  ordered  to  go  to 
Port  Arthur. 

On  the  14th  of  Feb.,  1904,  another  report  was  sent  in,  say- 
ing that: 


48  THE   OUTBREAK   OF  WAR.  [PART  I. 

About  300  refugees  from  the  environs  of  Kharbin,  nearly  half  of  whom 
were  women,  arrived  at  Mukden  February  10th,  where  they  were  ordered 
to  alight  and  received  strict  inspection  and  cruel  treatment.  On  Feb- 
ruary 11th  they  were  conveyed  to  Tashichao,  where  they  met  the  same 
fate  as  at  Mukden.  On  the  same  day  the  men  only  were  sent  to  Port 
Arthur,  and  the  women  were  allowed  to  proceed  to  Newchwang.  They 
were  once  conveyed  to  Niu-chia-tun,  and,  excepting  13  who  were  missed 
by  chance,  again  sent  to  Tashichao,  whence  they  were  sent  to  Port  Ar- 
thur. The  13  women  left  at  Niu-chia-tun  were  brought  to  Newchwang 
under  protection  of  the  United  States  Consul,  February  12th,  and  they 
were  sent  to  Shan-hai-kan,  borrowing  travelling  expenses  from  the  said 
Consul.  In  course  of  the  above  hardship,  some  of  the  300  refugees  were 
beaten  and  wounded,  and  were  robbed  of  almost  all  of  their  money  and 
personal  effects  by  the  Russian  soldiers.  Some  of  them  escaped  the  same 
fate  by  bribing,  and  they  were  in  a  most  destitute  condition. 

Without  delay,  the  Japanese  Minister  of  Foreign  Affairs 
sent  instructions  to  the  Minister  at  Washington  to  communicate 
to  the  Secretary  of  State  the  text  of  the  above  reports,  and  to 
say  to  him  that  as  the  Imperial  Government  entertained  grave 
apprehension  as  to  the  welfare  of  Japanese  subjects  remaining 
in  Manchuria,  they  deem  it  necessary  to  request  at  once  that 
the  United  States  Government  will  issue  necessary  instructions 
to  the  United  States  Ambassador  to  Kussia  with  a  view  to  se- 
curing for  those  Japanese  subjects  such  protection  and  treat- 
ment as  are  ordinarily  accorded  to  the  subjects  of  a  belligerent 
state,  who  continue  to  be  orderly  and  peaceful. 

On  Feb.  16  the  Secretary  of  State  agreed  to  instruct  the 
United  States  Ambassador  to  Russia  at  once. 

Soon  afterwards  we  received  the  following  report  from 
Chef  oo : 

About  170  Japanese,  mostly  women,  just  arrived  safely  from  Dalny 
on  board  a  German  steamer.  Although  some  of  them  were  maltreated 
on  the  way  to  Port  Arthur  yet  the  Russian  authorities  in  that  city 
and  in  Dalny  seem  to  have  duly  protected  them. 

Besides  these,  two  criminals  and  100  other  Japanese 
arrived  at  Chefoo  from  Port  Arthur,  and  322  arrived  at  Naga- 
saki from  Dalny. 

Thus  nearly  all  of  the  Japanese  subjects  in  Manchuria  re- 
turned to  Japan  under  the  protection  of  the  United  States. 


CHAP.  II.,    SECT.  III.]     AMERICAN  PROTECTION  OF  JAPANESE.   49 

III.     The  Withdrawal  of  the  Japanese  from  Odessa. 

Soon  after  the  commencement  of  hostilities,  the  Japanese 
Consul  at  Odessa  received  instructions  from  the  Home  Govern- 
ment to  close  the  consulate,  and  to  immediately  leave  the  post, 
his  staff  accompanying  him. 

According  to  this  order,  Mr.  Iijima  left  the  post,  leaving  a 
servant  named  Togasi  as  the  keeper  of  the  unoccupied  con- 
sulate. 

On  the  21st  of  August,  1904,  the  following  information  was 
received  from  Washington: 

The  United  States  Ambassador  to  Russia  reports  that  the  servant 
left  in  charge  of  our  consulate  at  Odessa  has  been  arrested  and  is  to  be 
expelled  from  the  Russian  Empire.  Our  Minister  at  Washington  asked 
the  United  States  Government  to  kindly  instruct  their  consul  in  Odessa 
to  take  charge  at  once,  and  further  to  engage,  if  necessary,  a  special 
watchman  at  the  expense  of  the  Japanese  Government. 

Soon  afterwards  we  received  the  following  report  from 
Vienna : 

Togasi,  the  guard  of  our  consulate  at  Odessa,  was  arrested  on  the 
13th  of  August  by  the  Russian  police  and  detained  until  the  18th. 
After  undergoing  an  examination,  he  was  forcibly  escorted  by  two 
gendarmes,  on  the  latter  day,  as  far  as  the  Austrian  frontier,  whence 
he  proceeded  to  Vienna.  The  United  States  Consul  in  Odessa  rendered 
him  every  assistance  and  has  taken  charge  of  the  consulate  quarters. 

On  this  occasion  the  American  Government  favoured  us 
with  her  best  offices,  as  the  document  below  indicates: 

American  Consulate, 
Odessa,  Russia,  August  27th,  1904. 
Honourable  Alvey  A.  Adee, 
Acting  Secretary  of  State, 

Washington,  D.  C. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  the  following 
telegram : 

Washington,  D.  C,  August  22nd. 
American  Consul,  Odessa: 

Take  custody  of  Japanese  Consulate.    Engage  watchman  if  necessary. 

Adee. 


50  THE   OUTBREAK  OF   WAR.  [PART  I. 

This  message  was  received  on  the  23rd  instant,  and  I  engaged  a 
watchman  the  same  day  at  thirty  rubles  per  month. 

I  have  also  taken  custody  of  the  consulate.  I  may  add  that  the 
Ambassador  had  previously  instructed  me  to  take  charge  of  the  Japa- 
nese Consulate,  and  I  have  done  so  to  the  extent  of  causing  the  place 
to  be  sealed  up  by  the  Russian  authorities,  pending  more  definite  in- 
structions. , 

The  arrival  of  your  telegram  authorising  me  to  engage  a  watchman 
enabled  me  to  assume  charge  of  the  place. 

I  notified  the  Governor  of  Odessa  on  August  13th  that  the  person 
in  charge  of  the  Japanese  Consulate  had,  on  that  date,  been  arrested 
by  the  gendarmes,  and  consequently  the  consulate  was  without  protec- 
tion. I  asked  that  special  police  protection  be  given  the  place.  My 
request  was  promptly  granted,  the  doors  of  the  Consulate  were  sealed 
and  the  police  placed  on  guard. 

These  have  now  been  withdrawn.  The  servant  or  person  who  was 
left  in  charge  by  the  late  Japanese  Consul,  and  who  was  expelled  from. 
Russia,  was  Kiichi  Togasi.  I  have  sent  the  Ambassador  a  full  report 
of  the  case. 

I  am,  Sir, 

Your  obedient  Servant, 

(Signed)     Thos.  E.  HeeneNj 
Consul. 

P.S. — I  have  received  a  letter  from  the  Japanese  Minister  at  Vienna, 
in  which  he  thanks  me  for  the  services  rendered  Togasi,  and  requests 
me  to  take  charge  of  the  consulate. 

IV.  The  Protection  of  the  Japanese  Subjects  Returning 
Through  Europe. 

The  Japanese  found  in  European  Russia  and  the  interior 
of  Siberia,  having  no  access  to  the  Pacific  Ocean,  came  back 
through  Germany,  setting  out  from  Bremen.  Their  obliga- 
tions while  withdrawing  to  the  zealous  efforts  of  the  American 
Ambassador  in  Russia  and  the  sympathy  of  German  officers  and 
people  ought  not  to  be  ignored.1 

No  particular  mention  is  needed  about  the  six  Japanese  who 
came  back  via  Berlin  on  February  29th  and  March  22nd,  1904. 

On  March  26th  12  Japanese  were  enabled  to  withdraw  from 
Russia  safely,  owing  to  the  efforts  of  American  Ambassador  in 
Russia. 

The  following  indicates  the  America-Japanese  understand- 

1  Foreign  Relations,  1904,  pp.  431-432. 


CHAP.  II.,  SECT.  III.]       AMERICAN  PROTECTION  OF  JAPANESE.    51 

ing  agreed  upon  prior  to  the  withdrawal,  concerning  the  protec- 
tion of  Japanese  returning  via  Europe: 

Mr.  Takahira  to  Mr.  Hay.1 

Washington,  March  19th,  1904. 

With  reference  to  my  conversation  with  you  on  Thursday  last,  the 
17th  instant,  I  beg  here  to  hand  to  you  a  copy  of  the  telegram  which  was 
received  by  Baron  Komura,  his  Imperial  Majesty's  Minister  of  Foreign 
Affairs,  from  Mr.  Inouye,  the  Japanese  Minister  at  Berlin,  in  regard 
to  a  number  of  Japanese  residents  in  Siberia  now  suffering  from  the 
untoward  treatment  of  the  Russian  police  authorities,  and  consequently 
requesting  for  protection  and  assistance  to  enable  them  to  return  to 
Japan. 

I  am  now  instructed  to  request  that  the  United  States  Government 
will  have  the  goodness  to  instruct  His  Excellency  Ambassador  McCor- 
mick  to  take  necessary  steps  to  the  end  that  those  Japanese  subjects 
now  in  Russia,  who  are  destitute  and  desire  to  return  to  Japan,  may 
be  sent  to  Berlin,  as  the  Japanese  Legation  in  that  city  will  be  pre- 
pared to  take  charge  of  them.  As  to  the  expenses  required  for  the  jour- 
ney of  those  Japanese  subjects  from  Tsuta  to  Berlin,  I  am  in  the  hope 
that  the  United  States  Ambassador  at  St.  Petersburg  may  find  means 
to  obtain  the  necessary  information,  as  I  shall  be  ready  to  furnish  the 
amount  necessary  upon  receipt  of  such  information. 

Accept,  Mr.  Secretary,  the  renewed  assurances  of  my  highest  con- 
sideration. 

(Signed)     K.  Takahira. 

The  answer  is  as  follows : 

Mr.  Hay  to  Mr.  Takahira. 

Washington,  March  19th,  1904. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  note  of  the 
19th  instant,  requesting  that  the  United  States  Ambassador  to  Russia 
be  instructed  to  take  the  necessary  steps  to  the  end  that  certain  Japanese 
subjects  now  in  Russia,  who  are  destitute  and  desire  to  return  to  Japan, 
may  be  sent  to  Berlin,  to  be  cared  for  by  the  Japanese  Legation  in 
that  city. 

In  reply  I  have  the  honour  to  inform  you  that  the  Department  has 
just  received  a  telegram  from  Ambassador  McCormick  saying  that 
twelve  Japanese,  six  men  and  six  women,  in  a  destitute  condition, 
arrived  at  St.  Petersburg  to-day  from  Irkutsk,  not  being  allowed  to 
proceed  east,  and  who  wish  to  proceed  to  Germany. 

Mr.  McCormick  adds  that  he  is  arranging  to  send  them  to  Berlin, 
where  they  are  to  find  employment  through  the  Japanese  Legation  or 
to  be  sent  home. 

I  Foreign  Relations,  1904,  p.  431. 


52  THE   OUTBREAK  OF  WAR.  [PART   I. 

The  Department  has  approved  Mr.  McCormick's  action. 
Accept,  sir,  the  renewed  assurance  of  my  highest  consideration. 

(Signed)     Francis  B.  Loomis, 
Acting  Secretary. 

In  order  to  show  how  far  the  American  Ambassador  took 
pains  in  the  protection  of  the  twelve  Japanese,  together  with 
one  female  then  staying  at  St.  Petersburg,  the  complete  file  of 
documents  concerned  is  here  published,  notwithstanding  its 
voluminous  character  and  duplication,  believing  that  same  in- 
tricacy of  correspondence  to  be  a  powerful  witness  to  the  ex- 
traordinary difficulties  the  American  Ambassador  underwent. 

Mr.  McCormick  to  Mr.  Inouye. 

American  Embassy, 
St.  Petersburg,  March  26th,  1904. 
My  dear  Sir: 

As  has  already  been  communicated  to  you  through  the  United  States 
Ambassador  in  Berlin,  and  in  accordance  with  instructions  which  I  re- 
ceived from  Washington,  I  took,  charge  of  the  twelve  Japanese  refugees 
who  arrived  here  from  Siberia  on  March  19th  and  made  arrangements 
for  them  to  continue  their  journey  to  Berlin. 

Not  being  able  to  secure  promptly  the  presence  of  a  resident  Japa- 
nese who  speaks  Russian,  I  found  some  difficulty  in  communicating 
through  the  only  member  of  the  party  speaking  Russian.  No  complaint 
wras  made  by  the  party  speaking  Russian  of  the  treatment  received  by 
the  refugees,  although  it  seemed  a  hardship  that  they  were  compelled 
to  leave  the  country  in  which  they  wTere  established. 

I  learned  that  one  of  the  party  had  advanced  2640  rubles  to  an 
Italian  in  the  town  where  he  lived,  for  which  he  held  a  receipt,  and 
further  details  of  which  he  can,  of  course,  give  you  himself.  I  will  do 
anything  in  my  power  to  assist  in  collecting  or  securing  this  sum. 

The  best  method,  in  my  judgment,  would  be  to  put  the  claim  in  the 
hands  of  a  lawyer  in  St.  Petersburg. 

I  am,  sir, 

Your  obedient  servant, 
(Signed)  Robert  McCormick, 

American  Ambassador. 
To  His  Excellency  Mr.  Inouye, 

The  Minister  of  Japan  at  Berlin. 

On  the  30th  of  March  Mr.  Inouye  answered  Mr.  McCor- 
mick, saying  that  the  safe  arrival  of  the  Japanese  refugees  to 
Berlin  is  entirely  due  to  his  kind  efforts  and  care. 


CHAP.  II.,  SECT.  III.]     AMERICAN  PROTECTION  OF  JAPANESE.     53 

At  that  time,  one  of  the  party,  a  woman  named  Noshi 
Nishimoto,  brought  forward  the  complaint  that  her  husband, 
a  certain  Natsuzo  Nishimoto,  had  been  forcibly  detained  on 
the  way  by  the  Russian  Police  Authorities  at  the  Omsk  station, 
on  some  false  ground  of  suspicion. 

So  Mr.  Inouye  asked  Mr.  McCormick  to  make  inquiries  into 
the  matter. 

The  answer  is  as  follows: 

Mr.  McCormick  to  Mr.  Inouye. 

American  Embassy, 
St.  Petersburg,  April  15th,  1904. 
Your  Excellency: 

I  have  the  honour  to  acknowledge  the  receipt  of  Your  Excellency's 
communication  of  March  30th,  and  to  say  in  reply  that  I  lost  no  time 
in  making  inquiries  through  proper  channels  as  to  Natsuzo  Nishimoto, 
the  husband  of  the  unfortunate  woman  who  was  among  the  refugees 
to  whom  it  was  my  privilege  to  render  assistance  as  they  passed  through 
St.  Petersburg.  I  also  took  occasion  to  speak  personally  to  His  Excel- 
lency Count  Lamsdorff  with  reference  to  the  case  of  Nishimoto,  and  he 
promised  to  telegraph  that  full  information  be  furnished  as  to  Nishi- 
moto's  offence,  and  that,  unless  this  offence  was  of  a  character  to  make 
release  impossible,  steps  be  taken  to  bring  about  the  discharge  through 
whatever  channel  found  necessary  to  enable  Nishimoto  to  reach  St. 
Petersburg,  where  I  will  take  him  in  charge  and  provide  him  with  what- 
ever is  necessary  for  his  comfort  and  transportation  to  Berlin.  .  .  . 
I  am,  with  high  regard, 

Your  obedient  servant, 

(Signed)     Robert  S.  McCormick. 
His  Excellency  Mr.  Inouye, 

Japanese  Minister  at  Berlin,  etc. 

Mr.  McCormick  to  Mr.  Inouye. 

American  Embassy, 
St.  Petersburg,  April  18th,  1904. 
Your  Excellency: 

I  have  the  honour  to  inform  Your  Excellency  that  there  is  in  St. 
Petersburg  at  present  a  Japanese  subject,  a  woman  who  was  employed 
in  the  family  of  M.  Stein,  Secretary  of  the  Russian  Legation  to  Korea, 
who  accompanied  the  family  to  this  city  before  the  beginning  of  the 
war.  She  is  still  in  the  employ  of  M.  Stein,  but  wishes  to  leave  Russia, 
where  she  is  constantly  apprehensive  of  possible  trouble,  and  desires  to 
go  by  direct  boat  to  London  upon  the  opening  of  navigation  at  St. 
Petersburg,  which  will   occur  in  some  ten  days  or  two  weeks.     She  is 


54  THE   OUTBREAK  OF  WAR.  [PART  I. 

afraid  to  go  by  rail  to  Berlin  as  she  speaks  only  a  little  Russian  and 
no  German,  while  she  speaks  English  fairly  well,  and  would  consequently 
be  more  comfortable  on  an  English  steamer. 

As  I  do  not  consider  it  within  my  instruction  from  Washington, 
and  as  I  have  no  authorisation  from  Your  Excellency  to  forward  any 
Japanese  refugees  except  to  Berlin,  I  shall  await  your  assurance  that 
the  woman  in  question  may  safely  proceed  to  London  and  be  met  on 
her  arrival  there  by  a  representative  of  the  Japanese  Legation  before 
sending  her  on  her  way. 

She  is  kindly  treated  by  the  family  with  whom  she  lives  and  is  in 
no  sort  of  danger,  but  is  naturally  very  anxious  to  return  to  Japan 
and  to  be  among  her  own  people  once  more. 

I  am,  with  high  regard, 

Your  obedient  servant, 

His  Excellency  Mr.  Inouye,         (Signed)     Robert  S.  McCormick. 
Imperial  Japanese  Minister  to  the  German  Empire,  etc. 

Mr.  Inouye  sent  a  note,  with  date  of  April  21st,  1904,  ex- 
pressing his  cordial  thanks.  As  to  the  woman  in  question, 
who  desired  to  be  sent  direct  to  London,  he  answered  that  there 
was  no  objection. 

As  for  the  number  of  Japanese  subjects,  besides  the  men- 
tioned 12  persons,  of  whom  no  information  whatever  could  be 
obtainable,  the  Japanese  Minister  Inouye  made  investigation 
with  the  following  result: 

In  April,  when  the  American  Ambassador  in  Eussia  in- 
quired of  Count  Lamsdorff,  the  Eussian  Minister  of  Foreign 
Affairs,  concerning  the  welfare  of  Japanese  subjects  residing 
in  Siberia,  the  answer  was  that  some  of  the  Japanese  still  lived 
voluntarily  in  Siberia,  by  virtue  of  the  Imperial  Ordinance, 
Art.  I.,  issued  November  14th,  concerning  the  war,  and  that 
their  not  attempting  to  withdraw  was,  the  Eussian  Minister 
believed,  a  clear  indication  that  they  were  not  destitute,  as 
apparently  seemed. 

On  the  other  side,  however,  the  instructions  of  the  Lieuten- 
ant of  the  Far  East  compelled  all  Japanese  found  in  districts 
under  his  administration  to  withdraw. 

These  circumstances  put  together,  the  words  of  the  Eussian 
Minister  of  Foreign  affairs  cannot  be  readily  accepted,  for  the 
lack  of  unified  administration  between  the  Central  Foreign  De- 


CHAP.  II.,  SECT.  III.]     AMERICAN  PROTECTION  OF  JAPANESE.      55 

partment  and  the  Lieutenant  in  the  Far  East  is  a  common 
occurrence  in  the  Eussian  Empire. 

On  June  26th  a  report  was  made  by  the  American  Ambas- 
sador concerning  a  number  of  Japanese  subjects  assembled  at 
Perm,  who,  according  to  the  Eussian  edict,  dated  January  29th, 
1904  (Eussian  calendar),  had  been  put  under  American  pro- 
tection, and  enters  there  from  out  various  localities  as  Bra- 
govestchensk,  Chita,  Irkutsk,  Mukden,  and  others. 

These  Japanese,  under  special  protection  of  the  American 
Ambassador,  were  sent  back  to  their  home  from  Bremen  via 
Berlin.1  The  following  was  the  correspondence,  dated  Octo- 
ber 4th,  from  Berlin,  regarding  this  transaction: 

Eight  hundred  and  twenty-six  Japanese  refugees,  all  of  them  more 
or  less  destitute,  have  just  passed  through  Berlin  en  route  to  Bremen 
by  special  trains  from  the  Russian  frontier.  We  expect  the  further 
arrival  of  about  115  refugees  in  a  few  days.  The  Japanese  might  have 
made  arrangements  with  the  Norddeutscher  Lloyd  Company  to  send 
them  home  by  special  steamer,  The  Willehad,  leaving  Bremen.  Our 
thanks  are  especially  due  to  the  United  States  Ambassador  to  Russia 
for  all  his  friendly  efforts  and  care,  without  which  none  of  the  refugees 
would  have  been  able  to  reach  Germany  in  safety. 

The  Willehad,  which  departed  from  Bremen  on  October 
24th,  arrived  at  Nagasaki  on  December  9th. 

Soon  after  the  departure  of  that  group,  the  following  report 
was  sent  in: 

More  than  30  Japanese  are  still  left  in  Siberia  in  a  destitute 
condition. 

The  following  was  the  report  made  by  the  American  Ambas- 
sador concerning  the  matter: 

Mr.  McCormick  to  Mr.  Inouyc. 

American  Embassy, 
St.  Petersburg,  11  February,  1905. 
Your  Excellency: 

With  reference  to  the  Japanese  remaining  in  Siberia  at  Veliky 
Usting,  I  had  an  opportunity  yesterday  to  consult  with  Prince  Hil- 
koff,  the  Minister  of  Ways  and  Communication,  in  the  hope  that  some 

1See  "  The  Russian  Inhumanity,  pp.  35-38." 


56  THE   OUTBREAK   OF  WAR.  [PART   I. 

plan  might  be  devised  to  have  them  repatriated  immediately  via  Berlin, 
as  in  the  case  of  those  who  went  forward  some  three  months  ago. 

I  found,  however,  that  while  this  was  not  absolutely  impossible,  it 
was  not  practicable  at  this  season  of  the  year,  in  view  of  the  fact  that 
those  of  your  countrymen  who,  unfortunately,  still  remain  in  Siberia 
would  have  to  go  by  a  very  circuitous  route,  involving  a  thousand  or 
more  miles  of  unnecessary  travel,  and  over  a  line  more  or  less  over- 
burdened by  the  demand  made  upon  it  at  this  time.  By  travelling 
about  175  miles  by  sleigh  they  could  reach  the  railroad  at  a  point  not 
far  east  of  Perm,  but  to  cover  this  distance  at  this  season  of  the  year 
would  involve  great  hardship  and  suffering  during  the  sleigh  journey, 
and  possibly  serious  consequences  thereafter. 

For  this  reason  it  seems  best  to  me  that  they  remain  where  they  are 
until  the  opening  of  the  spring,  in  the  mean  time  being  provided  with 
what  is  necessary  for  their  sustenance  and  comfort. 

Prince  Hilkoff  manifested  every  willingness  to  meet  the  situation 
and  would  have  provided  transportation  had  I  only  asked  for  it. 

I  now  learn  that  the  delay  in  sending  in  an  account  for  the  transpor- 
tation, concerning  which  I  have  already  written  you,  is  due  to  an  error 
made  by  the  agent  at  the  point  where  the  Japanese  took  train,  involv- 
ing an  overcharge  of  something  like  900  rubles.  The  accounts,  there- 
fore, had  to  be  sent  back,  and  Prince  Hilkoff  has  undertaken  to  have 
them  presented  to  me  with  as  little  delay  as  possible  so  that  we  may 
render  account  to  you  for  the  sum  expended  and  remit  any  balance 
remaining  in  my  hand. 

I  avail  myself  of  this  occasion  to  renew  to  Your  Excellency  the 
assurance  of  my  high  consideration. 

(Signed)      Robert  S.  McCormick. 

His  Excellency  Mr.  Inouye, 

Imperial  Japanese  Minister  at  Berlin,  etc. 


Mr.  McCormick  to  Mr.  Inouye. 

American  Embassy, 
St.  Petersburg,  13  February,  1905. 
Your  Excellency: 

I  am  this  day  in  receipt  of  a  telegram  from  one  of  the  Japanese  at 
Veliky  Usting,  Isaworg  by  name,  stating  that,  owing  to  the  high  price 
of  provisions,  it  will  cost  about  40  copecks  per  day  per  man  to  support 
himself  until  such  time  as  they  can  be  repatriated. 

Of  course  I  have  no  means  of  verifying  his  figures,  but  in  view  of 
the  sum  allowed  for  taking  care  of  those  whom  we  patriated  in  October 
these  figures  seem  excessive.  Granting,  however,  that  the  above  figures 
are  correct,  and  that  it  will  be  two  months  before  river  navigation 
opens,  it  will  cost  about  720  rubles  to  provide  food  alone,  and  some- 
thing additional  may  be  necessary  for  those  who  are  in  need  of  warm 
clothing,  although  I  have  not  received  any  information  to  this  effect. 


CHAP.  II.,  SECT.  III.]     AMERICAN  PROTECTION  OF  JAPANESE.     57 

I  assume  that  it  is  your  pleasure  that  I  remit  the  sum  above  indi- 
cated, and  have  already  sent  some  300  rubles  to  provide  for  necessities 
up  to  to-day.  j  haye  the  honour  tQ  be 

Your  Excellency's  obedient  servant, 

(Signed)       Robert  S.  McCormick. 
His  Excellency  Mr.  Inouye, 

Imperial  Japanese  Minister  at  Berlin,  etc. 

On  the  31st  of  May,  1905,  Mr.  Inouye  forwarded  the  in- 
formation that  through  the  kind  endeavours  of  the  United 
States  Ambassador,  and  with  the  friendly  assistance  of  German 
authorities,  twenty-nine  refugees  from  Siberia  (twenty-four 
men  and  five  women)  had  safely  arrived  in  Berlin  May  29th, 
that  they  would  leave  Bremen  by  the  German  steamer  Prinz 
Heinrich  June  7th,  and  that  the  first  port  of  call  would  be 
Nagasaki. 

The  winter  season  having  passed,  and  the  refugees  not  yet 
having  been  sent  back,  Minister  Inouye  asked  Mr.  Meyer,  the 
new  American  Ambassador,  to  urge  the  Eussian  Government  to 
discharge  her  duty.  On  May  21  those  refugees  leaving  Eussia 
came  back  from  Bremen  via  Germany. 

The  following  document  is  attached,  as  in  other  instances 
to  bring  to  light  the  efforts  of  the  American  Ambassador: 

Mr.  Meyer,  the  new  American  Ambassador,  to  Mr.  Inouye. 

St.  Petersburg,  May  15,  1905. 
Your  Excellency: 

I  have  the  honour  to  inform  you,  in  reply  to  your  notes  of  the  27th 
of  April  and  10th  of  May,  that  I  have  made  all  the  arrangements  neces- 
sary for  the  repatriation  of  the  28  Japanese  subjects  who  have  been 
detained  at  Velikiousting.  As  they  will  be  ten  days  on  the  road,  they 
may  be  expected  to  arrive  at  the  German  frontier  about  the  30th  of 
May.  I  will  let  you  know  the  exact  date  of  their  arrival  at  Wirballen 
as  soon  as  I  am  informed  of  their  departure  from  Yoroslaw.  The  journey 
between  this  latter  place  and  the  frontier  is  from  5  to  6  days  and  will 
give  you  time  to  arrange  for  some  one  from  your  legation  to  meet  them 
at  Wirballen. 

I  avail  myself  of  this  occasion  to  renew  to  Your  Excellency  the 
assurance  of  my  high  consideration. 

(Signed)     George  von  Lengerke  Meyer. 

His  Excellency  Mr.  Inouye, 

Imperial  Minister  of  Japan,  Berlin. 


58  THE   OUTBREAK   OF   WAR.  [PART   I. 

Mr.  Meyer  *o  Mr.  Inouye. 

Embassy  of  United  States, 
Your  Excellency:  St'  Petersburg,  May  21st,  1905. 

I  have  the  honour  to  acknowledge  the  receipt  of  your  note  of  May 
20th,  in  answer  to  which  I  telegraphed  you  on  the  22nd  instant  as 
follows: 

Your  compatriots,  28  in  number,  left  Onsting  yesterday,  Sunday, 
the  21st,  en  route  for  Wirballen.  Will  wire  later  approximate  arrival 
at  frontier. 

Yesterday  I  telegraphed  you: 

"  Twenty-nine  refugees  will  probably  reach  frontier  by  end  of  month." 

In  explanation  of  the  additional  member  of  the  party  of  refugees,  I 
have  to  inform  Your  Excellency  that  Mr.  Wassilieff,  late  Russian  Vice- 
Consul  at  Kobe,  Japan,  brought  with  him  to  St.  Petersburg  a  Japa- 
nese maid,  Katsu  Fukuyama,  40  years  old,  resident  of  Hiogo,  who 
now  desires  to  return  to  Japan  and  in  whose  behalf  Mr.  Wassilieff 
has  requested  me  to  permit  her  to  join  the  Japanese  now  en  route. 
All  arrangements  have  been  made  for  her  to  leave  Russia  without 
molestation. 

I  am  unable  to  inform  Your  Excellency  at  this  moment  when  this 
woman  will  join  the  party,  but  it  will  be,  if  not  at  the  frontier,  at  some 
station  before,  so  that  when  your  countrymen  are  turned  over  to  your 
representative  this  woman  will  be  of  the  number. 

I  avail  myself  of  this  occasion  to  renew  to  Your  Excellency  the 
assurance  of  my  high  consideration. 

(Signed)     George  von  Lengerke  Meyer. 

His  Excellency  Mr.  K.  Inouye, 
Japanese  Minister,  Berlin. 

On  the  3rd  of  May  the  United  States  Ambassador  to  Rus- 
sia gave  information  to  the  effect  that  he  had  received  intima- 
tion from  the  Russian  Foreign  Office  that  there  were  in  the 
province  of  Amur  63  Japanese  who  would  be  sent  to  Stryetensk ; 
and  that  besides  these,  there  were  some  prisoners  of  war  in 
the  Trans-Baikal  province,  consisting  of  a  major,  his  wife,  five 
soldiers,  and  an  interpreter.  The  United  States  Ambassador 
took  steps  to  see  that  they  were  provided  with  facilities  to  reach 
Berlin. 

Above  are  given  only  a  very  few  of  the  many  instances  that 
might  be  cited  to  set  forth  the  great  and  unceasing  efforts  ex- 
erted by  the  United  States  for  the  protection  of  Japanese  in- 
terests during  the  war.     To  attempt  to  enumerate  them  all,  eo 


CHAP.  II.,  SECT.  III.]       AMERICAN  PROTECTION  OF  JAPANESE.    59 

as  to  show  Japan's  indebtedness  to  the  United  States,  would 
require  volumes;  the  single  instance  above  given  serves  well  as 
an  illustration. 

No  judicious  reader  could  possibly  glance  over  these  pages 
without  being  made  aware  of  the  book's  intention,  deeper 
than  it  may  apparently  seem,  to  bring  to  light  the  friendly  atti- 
tude which  the  United  States  Government  never  failed  to  pre- 
serve during  the  withdrawal  of  the  Japanese  subjects  who  were 
found  in  Eussian  territories  and  in  the  land  occupied  by  Rus- 
sia. It  has  been  an  earnest  endeavour  to  make  both  the  Amer- 
ican and  Japanese  public  well  acquainted  with  facts  hitherto 
comparatively  little  known.  Peace  among  civilised  nations 
must  be  the  pedestal  upon  which  international  intercourse  is 
to  be  placed;  and  if  any  two  friendly  nations  breed  estrange- 
ment, however  slight,  because  of  a  sensational  and  groundless 
misunderstanding,  fermented  among  the  uneducated  classes, 
then  the  more  refined  and  the  highly  educated  should  be  largely 
held  responsible  for  the  consequences.  What  perhaps  seems  a 
too  minute  exposure  of  details  illustrative  of  the  Americo- 
Japanese  friendship,  surely  will  not  be  regarded  as  casual, 
when  viewed  in  such  a  light. 


CHAPTER   III. 

DAYS     OF    GRACE    FOR    THE    ENEMY'S    VESSELS 
AT    THE    OUTBREAK    OF    WAR, 

The  most  important  commercially  of  the  cases  in  which 
days  of  grace  were  granted  occurred  when,  at  the  commencement 
of  hostilities,  belligerents  gave  permission  to  private  vessels 
of  the  enemy  to  depart  from  their  ports  within  a  certain 
time  unmolested.  Sometimes  a  right  to  enter  as  well  as 
leave  is  granted.  Sometimes  the  set  period  is  long,  sometimes 
short.  Everything  depends  upon  the  liberality  of  the  com- 
batant powers.  Strictly  speaking,  the  outbreak  of  war  gives 
a  State  a  right  to  capture  all  vessels  of  the  enemy  it  finds, 
as  long  as  the  seizure  does  not  take  place  in  neutral  waters. 
Indeed,  until  about  a  century  ago  the  custom  obtained  of  levy- 
ing, in  anticipation  of  hostilities,  what  was  called  an  embargo 
on  vessels  of  a  prospective  enemy.  That  is  to  say,  an  enemy's 
merchantmen  lying  in  the  ports  of  a  State  that  contemplated  a 
war  were  detained  in  order  that  there  might  be  a  rich  harvest 
of  prizes  as  soon  as  the  expected  war  broke  out.  But  since  then 
the  interests  of  commerce  have  prevailed  over  the  desire  for 
spoil.  Imperial  maritime  powers,  on  becoming  belligerents, 
have  issued  proclamations,  giving  merchant  vessels  of  the  enemy 
found  in  their  ports  at  the  commencement  of  hostilities  a  cer- 
tain fixed  time  during  which  they  are  free  to  depart  unmo- 
lested.1 

It  was  until  lately  the  practice  of  Great  Britain  to  seize 
as  prizes  all  vessels  and  cargoes  belonging  to  an  enemy  found 
within  her  borders  or  bound  for  her  territorial  waters  or  har- 
bours on  the  outbreak  of  war;  but  even  this  appears  to  have 

1  Lawrence,  War  and  Neutrality  in  the  Far  East,  p.  49. 
60 


CHAP.  III.]  DAYS   OF   GRACE.  61 

been  given  up.  On  the  outbreak  of  the  Crimean  war  both 
Great  Britain  and  France  allowed  Russian  merchant  vessels 
then  in  British  or  French  ports  six  weeks  to  complete  their 
cargoes  and  depart  unmolested.  The  same  exemption  was  ex- 
tended to  all  Russian  merchant  vessels  which,  prior  to  the  date 
of  the  Order  in  Council,  had  sailed  from  any  foreign  port  for 
any  British  port,  such  vessels  being  allowed  to  enter  and  dis- 
charge their  cargoes  and  return  unmolested  to  any  port  of  their 
own  country  not  under  blockade.  The  same  policy  was  pur- 
sued by  France  at  the  outbreak  of  the  Franco-German  War  in 
1870,  the  privilege  of  free  departure  with  safe  conduct  being 
granted  to  the  enemy's  ships  then  in  French  ports,  the  privilege 
of  entry  and  departure  being  also  granted  to  the  enemy's  ves- 
sels that  had  begun  to  load  goods  on  French  account  at  any 
time  before  war  was  declared.  Germany  went  still  farther  and 
issued  a  declaration  altogether  exempting  private  vessels  and 
cargoes  belonging  to  the  enemy  from  capture.  This  declaration 
was,  however,  subsequently  rescinded,  and  was  probably  only 
intended  to  force  the  French  Government  into  a  similar  course. 

Subject  to  this  exceptional  practice,  however,  the  right  of 
seizure  would  still  be  exercisable  in  respect  of  the  enemy's  ves- 
sels or  property  found  within  or  bound  for  the  territory  of  the 
other  belligerent  after  the  outbreak  of  war.  In  the  case  of  the 
Jalianna  Emilie  (Spinks,  14),  1854,  Dr.  Lushington  laid  down 
that  it  was  legitimate  for  any  person  to  take  possession  of  and 
to  assist  the  Crown  to  proceed  against  the  enemy's  property 
found  in  any  part  of  the  United  Kingdom,  unless  it  were  pro- 
tected by  license  or  declaration  from  the  Crown.1 

The  most  liberal  indulgences  ever  granted  in  this  respect  to 
an  enemy's  trade  are  to  be  found  in  the  Proclamation  of  Presi- 
dent McKinley.2 

The  details  are  as  follows: 

1.  The  neutral  flag  covers  the  enemy's  goods,  with  the  exception  of 
contraband  of  war. 

1  Pitt-Cobett,  Leading  Cases,  pp.  157-158. 

2  International  Law  Situation  with  Solution  and  Notes,  1901,  pp.  150-159. 


62  THE   OUTBREAK   OF  WAR.  [PART   I. 

2.  Neutral  goods,  not  contraband  of  war,  are  not  liable  to  confisca- 
tion under  the  enemy's  flag. 

3.  Blockades  in  order  to  be  binding  must  be  effective. 

4.  Spanish  merchant  vessels,  in  any  ports  or  places  within  the 
United  States,  shall  be  allowed  until  May  21,  1898,  inclusive,  for  loading 
their  cargoes  and  departing  from  such  ports  or  places;  and  such  Spanish 
merchant  vessels,  if  met  at  sea  by  any  United  States  ship,  shall  be 
permitted  to  continue  their  voyage,  if,  on  examination  of  their  papers, 
it  shall  appear  that  their  cargoes  were  taken  on  board  before  the  expira- 
tion of  the  above  term:  Provided,  that  nothing  herein  contained  shall 
apply  to  Spanish  vessels  having  on  board  any  officer  in  the  military 
or  naval  service  of  the  enemy,  or  any  coal  (except  such  as  may  be 
necessary  for  their  voyage),  or  any  other  article  prohibited  or  contra- 
band of  war,  or  any  despatch  of  or  to  the  Spanish  Government. 

5.  Any  Spanish  merchant  vessel  which,  prior  to  April  21,  1898, 
shall  have  sailed  from  any  foreign  port  bound  for  any  port  or  place  in 
the  United  States,  shall  be  permitted  to  enter  such  port  or  place,  and  to 
discharge  her  cargo,  and  afterwards  forthwith  to  depart  without  moles- 
tation; and  any  such  vessel,  if  met  at  sea  by  any  United  States  ship, 
shall  be  permitted  to  continue  her  voyage  to  any  port  not  blockaded. 

The  right  of  search  is  to  be  exercised  with  strict  regard  for  the 
rights  of  neutrals,  and  the  voyages  of  mail  steamers  are  not  to  be  inter- 
fered with,  except  on  the  clearest  grounds  of  suspicion  of  a  violation 
of  law  in  respect  of  contraband  or  blockade,  issued  on  April  26,  1898, 
at  the  commencement  of  the  late  war  between  the  United  States  and 
Spain.  Spanish  merchant  vessels  in  American  ports  were  allowed  till 
May  21  for  loading  cargoes  and  departing,  and  were  not  to  be  captured 
on  their  return  voyage  unless  their  cargoes  included  contraband  of  war, 
or  Spanish  military  or  naval  officers,  or  despatches  to  or  from  the 
Spanish  Government.  Further,  the  enemy's  merchantmen  which  had 
sailed  before  April  21,  the  day  on  which  the  war  broke  out,  from  any 
foreign  port  to  any  port  of  the  United  States,  were  allowed  to  enter 
such  port,  discharge  cargo  and  depart  without  molestation,  and  if  met 
at  sea  on  the  return  voyage  to  any  port  not  under  blockade  were  to 
be  exempt  from  capture  by  American  cruisers.  Moreover,  these  liberal 
rules  received  extension  from  the  judiciary.  In  the  case  of  the  Bucna 
Ventura,  it  was  held  by  the  Supreme  Court  of  the  United  States  that 
Spanish  vessels  came  within  the  "  intention  "  of  the  President's  Procla- 
mation if  they  had  sailed  from  any  American  port  on  or  before  May  21, 
even  though  the  departure  took  place  before  the  war  began.  Acting  on 
his  interpretation,  the  Court  released  an  enemy  vessel  which  had  sailed 
from  Ship  Island,  Mississippi,  on  April  19,  two  days  before  the  com- 
mencement of  hostilities,  and  was  captured  at  sea  on  April  22,  a  day 
after  the  outbreak  of  the  war. 

In  the  second  Hague  Conference  the  following  convention 
was  passed: 


CHAP.  III.]  DAYS  OF   GRACE.  63 

Convention  Relative  to   the  Status  of  Enemy   Merchant  Ships  at  the 
Outbreak  of  Hostilities. 

Article  I. 

When  a  merchant  ship  belonging  to  one  of  the  belligerent  Powers 
is  at  the  commencement  of  hostilities  in  an  enemy  port,  it  is  desirable 
that  it  should  be  allowed  to  depart  freely,  either  immediately,  or  after 
a  reasonable  number  of  days  of  grace,  and  to  proceed,  after  being 
furnished  with  a  pass,  direct  to  its  port  of  destination  or  any  other 
port  indicated. 

The  same  rule  should  apply  in  the  case  of  a  ship  which  has  left  its 
last  port  of  departure  before  the  commencement  of  the  war  and  entered 
a  port  belonging  to  the  enemy  while  still  ignorant  that  hostilities  had 
broken  out. 

Article  II. 

A  merchant  ship  unable,  owing  to  circumstances  of  vis  major,  to 
leave  the  enemy  port  within  the  period  contemplated  in  the  above 
article,  or  which  was  not  allowed  to  leave,  cannot  be  confiscated. 

The  belligerent  may  detain  it,  without  payment  of  compensation, 
subject  to  the  obligation  of  restoring  it  after  the  war,  or  requisition  it 
on  payment  of  compensation. 

Article  III. 

Enemy  merchant  ships  which  left  their  last  port  of  departure  before 
the  commencement  of  the  war,  and  are  encountered  on  the  high  seas 
while  still  ignorant  of  the  outbreak  of  hostilities,  cannot  be  confiscated. 
They  are  only  liable  to  detention  on  the  understanding  that  they  shall 
be  restored  after  the  war  without  compensation,  or  to  be  requisitioned, 
or  even  destroyed,  on  payment  of  compensation,  but  in  such  case  pro- 
vision must  be  made  for  the  safety  of  the  persons  on  board  as  well  as 
the  security  of  the  ship's  papers. 

After  touching  at  a  port  in  their  own  country  or  at  a  neutral  port, 
these  ships  are  subject  to  the  laws  and  customs  of  maritime  war. 

Article  IV. 

Enemy  cargo  on  board  the  vessels  referred  to  in  Arts.  I.  and  II.  is 
likewise  liable  to  be  detained  and  restored  after  the  termination  of  the 
war  without  payment  of  compensation,  or  to  be  requisitioned  on  pay- 
ment of  compensation,  with  or  without  the  ship. 

The  same  rule  applies  in  the  case  of  cargo  on  board  the  vessels 
referred  to  in  Art.  III. 

Article  V. 

The  present  convention  does  not  affect  merchant  ships  whose  build 
shows  that  they  are  intended  for  conversion  into  warships. 


64  THE   OUTBREAK   OF   WAR.  [PART   I. 

The  brief  observation  on  this  Convention  by  Dr.  J.  B.  Scott 
is  worthy  of  quotation  here : 1 

"  The  sixth  is  the  convention  concerning  enemy  merchant  ships  found 
in  enemy  ports  or  upon  the  high  seas  at  the  outbreak  of  hostilities. 
Custom  forbids  the  capture  of  enemy  vessels  within  the  port  of  the 
enemy  on  the  outbreak  of  hostilities  and  allows  them  a  limited  time  to 
discharge  or  load  their  cargo  and  depart  for  their  port  of  destination. 
The  attempt  was  made  to  establish  this  custom  or  privilege  as  a  right. 
The  proposition,  however,  met  with  serious  opposition,  and,  instead  of 
the  right,  the  convention  states  that  it  is  desirable  that  enemy  ships 
be  permitted  freely  to  leave  the  port.  The  convention,  therefore,  was 
restrictive  rather  than  declaratory  of  existing  international  practice. 
The  same  might  be  said  of  another  provision  of  the  convention  concern- 
ing the  treatment  of  enemy  merchant  ships  upon  the  high  seas.  It  may 
be  said  that  the  expression  of  a  desire  is  tantamount  to  a  positive 
declaration,  but,  strictly  construed,  the  convention  is  not  progressive. 
It  lessens  rights  acquired  by  custom  and  usage,  although  it  does,  indeed, 
render  the  privilege  granted  universal.  The  American  delegation,  there- 
fore, refrained  from  signing  the  convention." 

The  author  quite  agrees  with  his  opinion. 

At  the  commencement  of  the  Russo-Japanese  War,  Japan 
published  the  following  Imperial  Ordinance  under  date  of  the 
9th  of  February,  1904 : 

We  hereby  sanction  the  rules  concerning  the  exemption  from  cap- 
ture of  Imperial  Russian  merchant  vessels  and  order  the  same  to  be 
promulgated. 

No.  20,  Imperial  Ordinances. 

Art.  I.  Those  Imperial  Russian  merchant  vessels  that  shall  hap- 
pen to  be  in  the  ports  of  Japan  at  the  time  when  this  Ordinance  comes 
into  operation  shall  be  allowed  till  February  16,  1904,  to  discharge 
or  load  their  cargoes  and  to  depart  from  such  ports. 

Art.  II.  Any  such  Russian  merchant  vessel  that  shall  take  her 
departure  from  Japan  in  accordance  with  the  foregoing  rule  shall  be 
exempted  from  capture,  if  it  shall  be  plain  by  the  ship's  papers 
certified  by  the  authorities  of  Japan,  that  she  departed  from  a  port 
of  Japan  on  discharging  or  loading  her  cargo  before  the  expiration 
of  the  period  prescribed  in  the  above  article  and  that  she  is  on  her 
way  from  such  a  port  to  the  nearest  port  of  her  own  country  or 
leased  territory  or  of  her  destination,  excepting  the  case  when  she 
shall  have  touched  at  a  port  of  her  own  country  or  leased  territory  on 
her  way. 

1  The  American  Journal  of  International  Law,  January,  1908,  pp.  18-19. 


CHAP.  III.]  DAYS  OF  GRACE.  65 

Art.  Ill,  Those  Imperial  Russian  merchant  vessels  that  shall 
have  sailed  prior  to  February  9,  1904,  from  any  foreign  port  for  any 
port  of  Japan,  shall  be  allowed  to  enter  such  a  port  of  Japan,  and 
forthwith  to  discharge  her  cargo  and  to  depart  therefrom. 

(Art.  II.  is  to  be  applied  to  those  Imperial  Russian  merchant  ves- 
sels that  shall  have  departed  from  Japan  in  accordance  with  the 
above  Clause  of  this  Article.) 

Art.  IV.  The  clauses  of  this  Ordinance  are  not  to  be  applied  to 
those  Imperial  Russian  merchant  vessels  having  on  board  export  pro- 
hibited goods,  or  contraband  men,  or  contraband  goods,  or  contraband 
despatches. 

This  Ordinance  shall  come  into  operation  on  the  day  of  its  prom- 
ulgation. 

A  few  observations  on  this  Ordinance  will  be  made,  start- 
ing with  some  remarks  on  the  opinion  of  Dr.  Lawrence.  He 
says  : 

We  look  in  vain  for  such  liberality  in  the  present  conflict.  The 
Japanese  Imperial  Decree  of  February  9,  1904,  exempted  from  cap- 
ture Russian  merchantmen  that  were  leaving  Japanese  ports  up  to 
February  16,  and  also  those  that  were  sailing  direct  for  Japan  up  to 
that  date  from  non-Japanese  ports,  and,  after  discharging  cargo,  should 
keep  on  the  return  voyage  to  a  route  marked  out  for  them.  In  every 
case  the  indulgence  is  made  conditional  upon  the  absence  from  the 
cargo  of  contraband  of  war.  The  second  article  of  the  Czar's  Rules, 
issued  on  February  28,  granted  permission  to  Japanese  ships  of  com- 
merce found  in  Russian  ports  "  at  the  time  of  the  Declaration  of  War," 
which  was  made  on  February  10,  to  remain  without  molestation,  "  for 
such  a  period  as  may  be  necessary,  in  proportion  to  their  loading 
requirements,  but  which  should  in  no  case  exceed  forty-eight  hours, 
counting  from  the  moment  that  the  present  declaration  was  published 
by  the  local  authorities."  The  Russian  indulgence,  like  the  Japanese, 
was  made  to  depend  upon  the  absence  of  contraband  of  war  from  the 
cargoes. 

Thus  the  days  of  grace  granted  by  Japan  amounted  to  but  seven. 
Russia  gave  a  variable  time,  it  being  certain  that  the  local  authori- 
ties in  all  parts  of  her  vast  empire  would  not  publish  the  Czar's 
declaration  on  the  same  day.  But  the  period  of  forty-eight  hours, 
which  was  the  utmost  that  could  elapse  between  its  publication  and 
the  departure  of  the  enemy's  vessel,  is  very  short,  and  contrasts 
strongly  with  the  thirty  days  which  might  have  been  enjoyed  under 
the    Proclamation   of   President   McKinley.      It   may   be   assumed   that 


66  THE   OUTBREAK   OF  WAR.  [PART  I. 

Japanese  vessels  departing  in  accordance  with  the  Czar's  Order  are 
to  be  free  from  capture  on  the  return  voyage,  though  this  is  not  ex- 
pressly stated.  But  even  so,  their  privileges  are  small  compared  with 
those  accorded  to  Spanish  vessels  by  the  United  States  in  1898;  and 
the  case  of  those  that  are  on  their  way  to  Russian  ports  when  the 
war  broke  out  is  not  mentioned  at  all.  It  is  too  early  yet  to  pass 
judgment  upon  the  whole  matter.  The  full  facts  are  not  at  hand,* 
and  there  is  no  opportunity  of  weighing  the  decisions  of  Prize  Courts. 
But  we  can  hardly  escape  the  conclusion  that  commercial  interests 
will  not  prove  so  potent  as  to  mitigate  the  strict  rights  of  belligerents 
in  this  war  as  in  other  recent  struggles.  The  sea-borne  trade  of  Rus- 
sia in  the  Northern  Pacific  is  not  large  in  extent  or  enormous  in  value. 
She  can  afford  to  see  it  suffer  with  equanimity.  Japan,  on  the  other 
hand,  has  much  to  lose.  Of  late  the  increase  of  her  mercantile  marine 
has  been  as  remarkable  as  the  growth  of  her  fighting  navy.  She  has 
taken  over  a  large  number  of  its  best  vessels  to  act  as  transports. 
It  is  impossible  to  exaggerate  the  value  of  such  service  to  a  State- 
which  must  attack  its  foe  with  armies  sent  across  the  seas.  Per- 
haps it  was  the  consciousness  of  this  fact  which  caused  Russia  to 
cut  down  her  days  of  grace  to  a  minimum.  The  incident  should  be 
a  warning  to  nations  of  what  they  may  expect  if  they  should  be 
engaged  in  war  with  a  maritime  power.  In  this  matter,  when  bel- 
ligerents are  bound  by  no  definite  rules  of  universal  acceptance,  they 
will  naturally  consult  their  own  interests,  though  it  is  to  be  hoped 
that  cases  will  sometimes  occur  in  which  other  considerations  will 
be  present  to  their  minds.  A  power  which  sees  a  chance  of  striking 
a  severe  blow  at  its  enemy's  trade  by  cutting  the  days  of  grace  down 
to  a  minimum,  is  almost  certain  to  do  so,  especially  if  its  own  sea- 
borne commerce  is  so  small  that  little  is  to  be  feared  from  retaliatory- 
measures. 

The   essential   points   of   this   opinion   are   two;   blaming, 
firstly,  the  inadequacy  of  the  days  of  grace,  and,  secondly,  the* 
lack  of  a  clause  providing  for  the  exemption  from  capture  of 
the  enemy's  merchant  vessels  that  had  departed  from  Japan 
prior  to  the  outbreak  of  hostilities. 

Of  the  first  point,  it  may  be  stated  with  confidence  that 
the  days  of  grace  of  one  week  were  sufficient  for  Russian  ships 
to  enjoy  the  full  benefits  of  exemption,  considering  the  nature 
of  marine  traffic,  commercial  interest  between  Japan  and  Rus- 
sia, as  well  as  the  position  of  the  commercial  ports  in  the  Far 


CHAP.  III.]  DAYS   OF  GRACE.  67 

East;  consequently  the  one  week's  grace  was  adopted  by  the 
experienced  experts  of  the  Japanese  Navy. 

With  regard  to  the  second  point,  such  a  clause  was  inten- 
tionally omitted  at  the  time  of  publishing  the  Ordinance  as  a 
result  of  careful  consideration,  and  those  Eussian  vessels  that 
had  departed  from  Japan  prior  to  the  outbreak  of  war  were  not 
allowed  to  enjoy  the  privilege  of  exemption  from  capture. 

As  a  reason  for  this  intentional  omission  of  such  a  clause, 
reference  is  made  to  the  fact  that  at  the  time  when  the  diplo- 
matic relations  with  Eussia  were  in  a  critical  condition  and 
war  was  most  likely  to  break  out  at  any  moment,  there  were 
several  Eussian  steamers  that  had  left  Nagasaki  and  other  ports 
of  Japan  for  Port  Arthur  and  other  ports,  some  of  which  were 
suspected  of  having  on  board  various  documents  detrimental  to 
the  interests  of  Japan.  In  times  of  peace,  there  are  no  existing 
contraband  despatches;  which  circumstance  compelled  Japan 
to  abstain  from  taking  any  steps  towards  such  Eussian  steam- 
ers as  gave  reasonable  cause  to  invite  suspicion.  There  were 
also  several  Eussian  steamers  that  were  suspected  of  carrying 
coal,  arms,  and  other  warlike  articles  on  board;  but  they  were 
not  restrained  from  departing  for  the  same  reason.  If  the 
Eussian  ships  that  left  Japan  before  the  outbreak  of  war  had 
been  exempted  from  capture,  those  suspected  vessels  would 
naturally  have  been  also  exempted  from  capture  as  a  matter  of 
course.  It  should  not  be  forgotten  that  a  search  at  sea  is  in 
most  cases  rather  incapable  of  discovering  contraband  de- 
spatches concealed  in  a  ship.  Even  contraband  goods  often  es- 
cape discovery,  when  hidden  among  other  cargo.  It  was  dur- 
ing the  Chino-Japanese  war  that  the  Yik-sang  carried  on  board 
224  cases  of  ammunition,  each  case  containing  10,000  packets, 
under  the  disguise  of  Chinese  books.  At  the  time  of  the  first 
search,  the  ammunition  was  overlooked  by  the  Japanese  officers 
who  inspected  the  steamer;  but  some  arms  having  been  found 
later  in  another  steamer,  which  had  been  transhipped  from  the 
Yik-sang,  a  second  search  was  made  of  the  suspected  steamer; 
the  result  of  which  was  the  discovery  of  the  disguised  ammu- 


68  THE   OUTBREAK  OF   WAR.  [PART   I. 

nition.1  The  case  of  the  Yik-sang  is  an  example  showing 
how  difficult  it  is  to  discover  contraband  despatches  or  con- 
traband goods  by  a  search  at  sea.  This  it  was  that  induced 
Japan  to  omit  a  clause  providing  for  the  exemption  from  seiz- 
ure of  those  Russian  merchant  vessels  that  had  left  Japan 
prior  to  the  outbreak  of  hostilities,  it  being  certain  in.  most  cases 
to  result  in  practical  disadvantage  for  Japan  to  exempt  those 
Kussian  vessels  under  suspicion;  but  to  reserve  the  right  to 
detain  and  bring  them  to  a  port  of  adjudication  in  case  of 
closer  investigation  being  found  necessary,  irrespective  of  the 
result  of  a  search  made  on  the  open  sea. 

What  merchant  vessels  are  to  be  exempted  from  capture  is 
another  question  raised  on  this  Ordinance.  According  to  the 
opinion  of  the  Japanese  Prize  Court,  a  big  whaling  boat  (over 
100  tons)  did  not  come  within  the  rating  of  a  merchant  vessel, 
and  this  opinion  was  insisted  upon  when  the  whaling  boat 
Kotic  was  captured  during  the  period  fixed  for  exemption  from 
appropriation.  The  reason  offered  by  the  Court  for  this  cap- 
ture was  that  the  object  of  the  Ordinance  was  to  protect  com- 
mercial interests,  and  that  the  privilege  of  exemption  was 
therefore  limited  to  merchant  vessels  exclusively,  while  whaling 
vessels  were  outside  of  that  meaning. 

There  was  another  reason  in  refusing  the  extension  of  the 
privilege  of  exemption  to  the  Kotic.  The  reason  is  that  she  had 
done  some  acts  in  the  interests  of  the  Russian  Government  and 
had  not  confined  herself  to  the  proper  business  of  whaling.  For 
this  reason  no  objection  can  be  made  to  making  her  a  prize; 
but  a  protest  rightfully  goes  out  against  the  reasoning  on  the 
ground  that  fishing  boats  are  not  merchant  vessels.  The  word 
"  merchantman "  is  a  word  in  contrast  with  the  word  "  man- 
of-war,"  showing  one  of  the  two  categories  of  the  generic  term 
"ship,"  and  comprises  every  ship  which  belongs  to  either  a 
company  or  individual,  no  matter  whether  it  may  be  a  cargo 
boat,  passenger  boat,  work  boat,  or  whaling  boat.  According 
io  the  Prize   Court  Regulations  of  Japan,  the  vessels   to  be 

1  Cases  on  International  Law  during  the  Chino- Japanese  War,  pp.  71-112. 


CHAP.  III.]  DAYS  OF  GRACE.  69 

exempted  from  capture  are  clearly  stated  to  be  lighthouse  boats, 
cartels,  coast  fishing  boats,  and  ships  engaged  exclusively  on  a 
voyage  of  scientific  discovery.  It  is  meant  by  this  clause  that 
all  the  enemy  vessels  shall  be  captured,  except  those  enumer- 
ated; consequently  it  must  be  the  meaning  of  the  Ordinance 
that,  although  all  the  enemy  vessels  other  than  those  enumer- 
ated in  the  Kegulations  are  to  be  captured,  yet  they  shall  be 
exempted  from  capture  specially  during  the  days  of  grace. 
It  therefore  follows  that  the  opinion  of  the  Prize  Court,  though 
it  is  quite  good  enough  in  confiscating  the  Kotic,  cannot  be 
said  to  be  correct  in  considering  it  to  be  the  intention  of  the 
present  Ordinance  that  those  for  exemption  from  capture  were 
the  enemy's  merchant  vessels  in  the  narrow  sense  only. 


CHAPTER   IV. 

EFFECTS  OF  THE  OUTBREAK  OF  WAR  ON  FOR- 
EIGNERS IN  ONE  OF  THE  BELLIGERENT 
STATES. 

If  construed  in  accordance  with  the  English  school,  all 
persons  domiciled  in  the  territory  of  one  belligerent,  not  only 
belligerent  subjects,  but  foreigners  also,  are  contaminated  by 
the  hostile  character  of  that  territory,  and  consequently  are 
deemed  hostile  by  the  opposing  party,  for  "  domicile,  not  citi- 
zenship, is  the  primary  test  of  subject  character  under  the 
Laws  of  War  and  Neutrality,"  and  "all  persons,  whether  na- 
tives or  foreigners,  who  are  domiciled  in  belligerent  territory, 
or  in  places  under  belligerent  military  occupation,  may  be 
treated  as  hostile  by  the  opposing  belligerent." 

The  aim  of  this  chapter,  however,  is  not  to  deal  with  the 
legal  effects  of  the  outbreak  of  war,  but  to  consider,  as  one  of 
the  effects  of  the  outbreak  of  war,  the  question  of  a  war  tax 
upon  foreigners  who  lodged  a  protest  with  the  Japanese  Gov- 
ernment. 

To  lay  a  firm  basis  for  the  argument,  extracts  are  arranged 
below,  from  treaties  between  the  Powers  and  Japan,  which 
bear  on  the  topic  under  consideration. 

Japan  and  Great  Britain. 

August  25,  1894. 

Art.  II.  The  subjects  of  either  of  the  contracting  parties  residing 
in  the  dominions  and  possessions  of  the  other  shall  be  exempted  from 
all  compulsory  military  service  whatsoever,  whether  in  the  army,  navy, 
national  guard,  or  militia;  from  all  contributions  imposed  in  lieu  of 
personal  service,  and  from  all  forced  loans  or  military  exactions  or 
contributions. 

70 


CHAP.  IV.] 


WAR  TAXE3. 


71 


This  term  is  also  prescribed  in  many  other  treaties  between  Japan 
and  other  Powers,  namely: 


Japan 

and 

the  United  States, 

Japan 

and 

Italy,      .     . 

Japan 

and 

Russia,    .     . 

Japan 

and  Denmark,    . 

. 

Japan 

and 

Germany,    . 

Japan 

and 

Belgium, 

. 

Japan 

and  the  Republic  of  Peru 

Japan 

and 

Sweden-Norway, 

Japan 

and  Netherlands,    . 

Japan 

and 

Switzerland, 

. 

Japan 

and 

Spain,     .     .     . 

Japan 

and 

Portugal,     . 

Art.  L, 

Art.  II. 

Art.  I., 

Art.  I., 

Art.  II. 

Art.  I., 

Art.  I., 

Art.  I., 

Art.  I., 

Art.  II., 

Art.  II. 

Art.  I., 


par.  5. 

par.  5. 
par.  5. 

par.  5. 
par.  5. 
par.  5. 
par.  6. 
par.  6. 

par.  5. 


Japan  and  France. 

Traite  entre  le  Japon  et  la  France. 

Art.  III.,  par.  2.  lis  ne  seront  astreints  a  aucun  service  obligatoire, 
soit  dans  les  armees  de  terre  ou  de  mer,  soit  dans  les  guardes  ou  milices 
nationales.  lis  seront  exempts  de  toutes  contributions  imposees  eu  lieu 
et  place  du  service  personnel,  de  tous  empeunts  forces  et  de  toute  autre 
contribution  extraordinaire,  de  quelque  nature  que  ce  soit. 

Japan  and  Austria-Hungary. 

Art.  I.,  par.  4.  lis  ne  seront  contraints,  sous  aucun  pretexte,  a  subir 
des  charges  ou  a  payer  des  taxes,  autres  ou  plus  elevees  que  celles  qui 
sont  ou  seront  percues  sur  les  nationaux  ou  les  sujets  de  la  nation  la 
plus  favoris6e. 

Art.  II.  Les  sujets  de  chacune  des  Parties  contractantes  qui  resi- 
dent dans  les  territoires  de  l'autre,  ne  seront  astreints  a  aucun  service 
militaire  obligatoire,  soit  dans  l'armee  ou  la  marine,  soit  dans  la  garde 
nationale  ou  la  milice;  ils  seront  exempts  de  toutes  contributions  im- 
posees en  lieu  et  place  du  service  personnel  et  de  tous  emprunts  forces, 
de  toutes  exactions  ou  de  contributions  militaires. 

Sont  toutefois  exceptges  les  charges  qui  sont  attachSes  a  la  posses- 
sion d'un  bien-fonds,  ainci  que  les  prestations  et  requisitions  militaires 
auxquelles  tous  les  nationaux  peuvent  §tre  appeles  a  se  soumettre 
comme  proprietaires,  fermiers  ou  locataires  d'immeubles  en  tant  que  la 
possession  d'un  bien-founds  ou  d'immeubles  sera  permise. 

The  Imperial  Diet  of  Japan,  which  closed  its  extraordinary 
session  on  the  23rd  of  March,  1904,  gave  unanimous  consent 
to  the  War  Budget  as  well  as  to  a  bill  authorising  the  Govern- 
ment to  raise  a  loan  for  the  prosecution  of  the  war  and  also 
passed  the  War  Taxation  Bill. 


72  THE   OUTBREAK   OF  WAR.  [PART   t 

On  March  31,  1904,  the  extraordinary  special  taxation  act 
was  issued,  as  the  result  of  which  imposition  on  Imperial  sub- 
jects was  made  much  heavier  than  before.  Concerning  the 
protest,  which  the  said  act  occasioned  among  foreigners  living 
in  Japanese  territory,  the  following  was  the  view  held  by  that 
government : 

"  Some  foreigners  resident  in  Japan  are  objecting  to  the 
imposition  of  special  taxes  provided  for  by  Law  No.  III.,  pro- 
mulgated on  the  31st  of  March  last,  on  the  ground  that  the 
taxation  under  the  said  law  constitutes  extraordinary  contribu- 
tion from  which  foreign  residents  are  exempted  by  virtue  of 
Art.  II.  of  the  treaty  between  Japan  and  Austria-Hungary, 
Art.  III.  of  the  treaty  between  Japan  and  France,  and  simi- 
lar articles  in  other  treaties.  Some  of  the  foreign  representa- 
tives to  Japan  are  said  to  have  asked  their  governments  for  in- 
structions on  the  subject. 

"A  careful  perusal  of  the  above-mentioned  articles  of  the 
treaties  between  Japan  and  the  Powers  will  at  once  show  that 
Art.  I.,  last  Paragraph,  of  the  British  treaty;  Art.  II.,  first 
Paragraph,  of  the  French  Treaty,  and  similar  paragraphs  of 
other  treaties  deal  with  all  ordinary  charges,  taxes,  etc.,  and 
stipulate  that  in  these  matters  foreign  residents  in  Japan  are 
entitled  to  equal  treatment  with  Japanese,  but  certainly  not  to 
more  favourable  treatment  than  the  latter.  It  is  only  in  Art. 
II.  of  the  British  Treaty,  Art,  III,  second  paragraph  of  the 
French  Treaty,  etc.,  that  cases  are  provided  for  exempting  for- 
eigners from  certain  obligations.  These  cases  are  exclusively 
for  the  time  of  emergency  where  normal  proceedings  are  dis- 
pensed with  and  military  authority  is  called  upon  to  exercise 
the  necessary  power  in  an  exceptional  manner  dictated  by  the 
circumstances.  It  follows  therefore  that  the  taxes  in  question, 
being  established  by  a  law  which  was  presented  by  the  gov- 
ernment, voted  by  the  Diet,  and  sanctioned  and  promulgated 
by  His  Imperial  Majesty,  all  perfectly  in  accordance  with  due 
ordinary  processes,  can  by  no  means  be  taken  as  military  exac- 
tion   or    extraordinary   contributions,    such    as    would    exclude 


CHAP.  IV.]  WAR  TAXES.  73 

foreign  residents  in  this  country.  On  the  contrary,  it  is  be^ 
yond  all  doubt  that  they  are  nothing  but  ordinary  imposts  of 
which  foreigners  must  be  expected  to  bear  a  fair  share  equally 
with  the  people  of  the  community  where  they  reside." 

Below  is  inserted  an  extract  from  the  Kobe  Chronicle,  as 
most  typical  of  foreigners'  views : 

The  Kobe  Chronicle. 

Wednesday,  April  13th,  1904. 
Foreigners  and  the  New  Taxation. 

At  the  recent  meeting  of  the  Yokohama  Board  of  Trade  a  sort  of 
informal  protest  was  made  regarding  the  consumption  tases  which  the 
government  has  imposed  with  a  view  to  assisting  to  find  means  for 
the  prosecution  of  the  war.  From  the  brief  reports  in  our  Yokohama 
contemporaries  it  is  somewhat  difficult  to  understand  exactly  the  nature 
of  the  objections  that  were  raised.  According  to  the  report  in  the 
Japan  Herald,  Mr.  Griffin  remarked  that  the  sugar  consumption-tax 
was  a  violation  of  the  treaty,  while,  according  to  the  Gazette,  the  same 
speaker  seems  to  have  applied  his  remarks  to  the  consumption  taxes 
in  general.  If  the  reference  was  to  the  consumption  taxes  on  sugar, 
it  would  at  first  sight  appear  difficult  for  foreign  merchants  to  raise 
objection  on  the  ground  that  it  forms  a  violation  of  the  treaties.  The 
Protocol  to  the  British  Treaty  with  Japan  of  1894  has  the  following 
provision :  "  It  is  understood  between  the  two  high  contracting  parties 
that,  if  Japan  thinks  it  necessary  at  any  time  to  levy  an  additional 
duty  on  the  production  or  manufacture  of  refined  sugar  in  Japan,  an 
increased  Customs  duty  equivalent  in  amount  may  be  levied  on  British 
refined  sugar  when  imported  into  Japan,  so  long  as  such  additional 
excise  duty,  tax,  or  inland  duty  continues  to  be  raised.  Provided  always 
that  British  refined  sugar  shall  in  this  respect  be  entitled  to  the  treat- 
ment accorded  to  refined  sugar  being  the  produce  or  manufacture  of  the 
most  favoured  nation." 

Under  this  clause  the  Japanese  Government  would  seem  to  have  full 
right  to  impose  a  consumption  tax  on  sugar  unless  some  other  conven1 
tion  specifically  limits  that  right.  But  the  objection  taken  to  the  com 
sumption  tax  would  seem  to  be  that,  so  far  as  the  import  of  articles 
specified  under  it  are  considered,  it  is  exactly  as  if  the  additional  import 
duty  were  imposed  immediately,  instead  of  the  stipulated  six  months' 
notice  being  given.  That  this  is  so  appears  very  clearly  from  the  state- 
ment in  the  appendix  to  the  law  providing  for  special  taxation:  It  is 
there  provided  that  with  regard  to  the  consumption  tax  on  sugar  of 
No.  1  description,  molasses,  and  kerosene  oil,  the  tax  will  be  imposed 
after  the  lapse  of  six  months  from  the  date  that  the  law  goes  into 
operation.  Now  the  abolition  of  the  tax  on  these  articles  is  coincident 
with  the  coming   into  operation   of   the   increased  import   duties    upon 


74  THE   OUTBREAK   OF   WAR.  [PART  L 

them,  which,  as  we  have  said,  the  government  is  under  a  conventional 
obligation  not  to  impose  until  after  six  months'  notice  has  been  given. 
The  result  is  that  while  the  letter  of  the  treaties  is  observed  by  the 
six  months'  notice,  it  is  evaded  in  spirit  by  the  imposition  of  a  con- 
sumption tax  which  is  to  all  intents  and  purposes  equivalent  to  an 
increased  duty  on  the  imported  article.  The  case  may  be  stated  briefly 
thus : 

Under  the  treaties,  Japan  binds  herself  to  give  six  months'  notice 
before  an  alteration  of  the  statutory  import  tariff  goes  into  effect.  An 
occasion  arises  when  it  is  necessary  to  impose  additional  taxation  at 
the  earliest  possible  moment.  Debarred  by  the  provision  in  the  treaties 
from  increasing  duties  immediately,  a  consumption  tax  is  imposed  under 
which  the  goods  have  to  pay  an  equivalent  of  that  duty  as  an  inland 
tax  before  they  can  be  taken  for  consumption  out  of  the  godowns  in 
which  they  are  stored.  From  this  point  of  view  it  would  certainly  seem 
that  the  spirit  of  the  treaties  in  this  matter  is  violated,  and  that  the 
foreign  merchant  who  has  made  his  contracts  for  months  in  advance 
has  a  legitimate  grievance,  for  he  will  find  it  difficult  in  many  cases  to 
induce  customers  to  take  delivery  unless  he  himself  agrees  to  bear  the 
increased  taxation.  It  is  to  be  hoped  that  when  this  injustice  is  pointed 
out,  the  consumption  taxes,  in  so  far  as  they  affect  the  duties  upon 
imported  articles,  will  be  suspended  in  operation  for  the  six  months 
necessary  for  which  notice  must  be  given  of  changes  in  the  tariff. 

With  regard  to  the  increased  levies  on  the  business  and  income 
taxes,  it  may  be  expected  that  instructions  will  be  given  to  the  various 
taxation  bureaus  by  the  Finance  Department,  pointing  out  that  accord- 
ing to  the  treaties  the  increased  levy  must  not  be  made  upon  foreigners. 
The  officials  are  now  busily  engaged  making  up  the  assessments  for  the 
business  tax,  and  the  work  upon  the  income-tax  assessments  follows. 
It  would  undoubtedly  save  much  trouble  in  the  way  of  protest  and 
facilitate  collection  if  the  officers  of  the  Taxation  Bureau  had  the  mat- 
ter brought  formally  to  their  notice  by  the  department  responsible. 

We  have  already  called  attention  to  Art.  II.  of  the  Anglo-Japanese 
Treaty  dealing  with  the  matter,  which  reads: 

"  The  subjects  of  either  of  the  contracting  parties  residing  in  the 
dominions  and  possessions  of  the  other  shall  be  exempted  from  all  com- 
pulsory military  service  whatsoever,  whether  in  the  army,  navy,  national 
guard,  or  militia ;  from  all  contributions  imposed  in  lieu  of  personal  ser- 
vice, and  from  all  forced  loans  or  military  exactions,  or  contributions." 

From  this  it  is  evident  that  it  would  be  against  the  provisions  of 
the  treaties  to  impose  on  foreign  residents  in  Japan  the  additional  war 
levies  on  the  business  and  income  taxes  by  which  those  taxes  are 
almost  doubled.  The  indirect  taxation  foreigners  can  hardly  escape, 
but  the  direct  taxes,  in  the  shape  of  military  exactions  or  contributions, 
evidently  cannot  be  imposed  upon  them.  Foreigners  can  with  some 
show  of  justice  claim  the  exemption,  seeing  it  is  notorious  that  they 
already  pay  far  more  in  proportion  than  their  Japanese  fellow-residents, 
for,  as  we  pointed   out  when  considering  the  question   some  time  ago, 


CHAP.  IV.]  WAR  TAXES.  75 

it  is  quite  evident  from  the  returns  that  foreigners  are  far  more  accu- 
rate in  the  statement  of  their  income  and  business  than  the  Japanese, 
otherwise  the  proportion  of  the  tax  which  they  pay  in  such  a  place  as 
Kobe  would  not  be  so  large  as  it  is. 

An  argument,  opposed  to  the  above,  was  made  public  by 
Mr.  Vickers,  Professor  of  Political  Economy  of  the  Keiogijiku 
University,  Japan. 

To  the  Editor  of  the  Kobe  Chronicle. 

Sir:  In  your  leader  of  April  13th,  you  state — or  rather  take  for 
granted — that  foreigners  are  exempt  from  payment  of  the  additional 
levies  recently  authorised  on  the  business  and  income  taxes.  If  this 
view  rests  solely  on  Art.  II.  of  the  Anglo-Japanese  Treaty,  as  quoted 
by  you,  it  does  not  seem  to  me  likely  that  foreigners  will  escape  the 
necessity  of  paying  the  additional  levies.  The  war  taxes  authorised  by 
the  Diet  do  not  appear  to  fall  within  any  clause  of  the  Article  quoted 
by  you.  They  are  neither  "  military  service  "  nor  "  contributions  im- 
posed in  lieu  of  personal  service,"  nor  "  forced  loans  "  nor  "  military 
exactions  or  contributions."  Presumably  you  thought  of  the  "  war 
taxes  "  as  "  military  exactions  or  contributions."  If  so,  it  seems  to  me 
that  the  phrase  "  military  exactions  or  contributions "  is  sure  to  be 
interpreted  as  exactions  or  contributions  which  are  levied  under  mili- 
tary authority,  taken  by  representatives  of  the  military  arm  of  the 
government,  or  at  least  levied  in  territory  over  which  martial  law  has 
been  proclaimed.  In  other  words,  taxes  which  have  been  regularly 
authorised  by  the  Diet  and  which  are  collected  in  the  usual  way  by 
the  civil  arm  of  the  Government  are  not  in  the  legal  sense  "  Military 
exactions  or  contributions  " — even  though  used  for  the  support  of  the 
military  establishment  or  for  defraying  the  actual  costs  of  war.  Other- 
wise, why  are  not  foreigners  wholly  exempt  from  payment  of  business 
and  income  taxes,  a  part  of  which  are  at  all  times  applied  to  military 
purposes  ? 

It  seems  worth  while  to  call  attention  to  this  matter,  because  the 
impression  that  foreigners  need  not  pay  the  increased  levies  might  in 
some  cases  oause  disappointment  or  inconvenience. 

Very  truly  yours, 

(Signed)     E.  H.  Vickers, 
Prof,  of  Pol.  Econ.,  Keiogijiku  Univ. 

Kobe,  April  17th,  1904. 

In  short,  the  controversy  was  whether  the  taxes  in  question 
might  be  construed  or  not  as  included  in  "  forced  loans  or 
military  exactions  and  contributions "  provided  for  in  the 
treaties. 


76  THE   OUTBREAK  OF   WAR.  [PART   I. 

The  positive  argument  is  upheld  by  most  foreigners,  and 
the  negative  by  Professor  Vickers,  who  as  a  natural  conclu- 
sion stated  that  foreigners  have  no  right  to  be  exempt  from 
the  new  taxes. 

A  foreigner  taking  the  side  of  the  Kobe  Chronicle  tried  to 
refute  Professor  Vickers'  argument  with  a  quotation  from  the 
latter  part  of  the  Austrian  Treaty,  Art.  II.,  which,  however, 
does  not  seem  sufficient  to  overthrow  the  sound  logic  of  Mr. 
Vickers. 

By  way  of  argument,  readers  are  presented  with  an  article 
opposed  to  that  of  Professor  Vickers. 


The  Japan  Daily  Herald. 

April  21st,  1904. 
The  War  Taxes. 

The  question  has  been  raised  whether,  under  the  treaties,  foreigners 
can  be  called  upon  the  pay  the  extra  taxes  levied  according  to  the  Ex- 
traordinary Special  Tax  Law,  a  translation  of  which  we  include  in 
to-day's  issue.  With  regard  to  the  indirect  taxes  there  appears  but 
little  chance  of  foreigners  being  exempted,  though  the  arguments  for 
the  exemption  of  foreigners  from  the  direct  war  taxes  apply  with  no 
less  force  to  these.  It  will  be  best  first,  however,  to  consider  what  these 
arguments  are.  Those  who  claim  that  foreigners  are  exempt  from  the 
payment  of  these  taxes  base  their  argument  on  the  clause  in  the  treaties 
which  refers  to  the  exemption  of  foreigners  from  military  service  and 
from  contributions  imposed  in  lieu  of  such  service.  In  the  Anglo- 
Japanese  Treaty  this  clause  reads: 

"  The  subjects  of  either  of  the  contracting  parties  residing  in  the 
dominions  and  possessions  of  the  other  shall  be  exempted  from  all  com- 
pulsory military  service  whatsoever,  whether  in  the  army,  navy,  national 
guard,  or  militia;  from  all  contributions  imposed  in  lieu  of  personal 
service,  and  from  all  forced  loans  or  military  exactions  or  contributions." 

The  concluding  sentence  of  this  clause  is  taken  as  showing  that  the 
negotiators  intended  that  it  should  cover  all  special  taxes  raised  for 
the  purpose  of  carrying  on  war.  This  view  is  upheld  by  the  wording 
of  the  corresponding  clause  in  the  French  Treaty  with  Japan,  which 
reads : 

lis  ne  seront  astreints  a  aucun  service  obligatoir,  soit  dans  les  armees 
de  terre  ou  de  mer,  soit  dans  les  gardes  ou  milices  nationales. 

lis  seront  exempts  de  toutes  contributions  impos&es  eu  lieu  et  place 
du  service  personnel,  de  tous  emprunts  forces  et  de  toute  autre  contri- 
bution extraordinaire,  de  quelque  nature  que  ce  soit. 

Here,  it  will  be  seen,  the  place  of  the  words  "  military  exactions  or 


CHAP.  IV.]  WAR   TAXES.  77 

contributions "  is  taken  by  "  toute  autre  contribution  extraordinaire, 
de  quelque  nature  que  ce  soit."  Now,  whatever  may  be  the  case  in 
regard  to  the  Anglo- Japanese  Treaty,  it  is  claimed  that  the  words  in  the 
French  Treaty  must  apply  to  the  increased  taxes  levied  under  the  Ex- 
traordinary Special  Tax  Law.  Although  Art.  I.  of  the  law  states  but 
vaguely  that  the  increased  taxes  are  to  defray  the  expenditure  for  a 
certain  special  purpose,  in  the  article  referring  to  the  period  during 
which  the  law  is  to  remain  in  force,  it  is  clearly  stated  that  this  term 
closes  the  year  after  peace  is  concluded.  Thus  there  can  be  no  doubt 
that  the  taxes  are  for  military  purposes  and  that  they  are  "  extraor- 
dinary taxes,"  or,  in  the  words  of  the  French  Treaty,  "contributions 
extraordinaires.,,  Now  if  the  clause  quoted  from  the  English  Treaty 
does  not  refer  to  taxes  of  this  nature,  to  what  kind  of  taxes  does  it 
refer?  Professor  Vickers,  of  the  Keiogijiku  University,  in  a  letter  to 
the  Kobe  Chronicle,  contends  that  the  clause  refers  to  exactions  "  levied 
under  military  authority,  taken  by  representatives  of  the  military  arm 
of  the  government,  or  at  least  levied  in  territory  over  which  martial 
law  has  been  proclaimed."  This  view  is  not  upheld  by  a  perusal  of  the 
same  clause  in  the  French  Treaty,  which  sums  up  in  the  words,  "all 
other  extraordinary  contributions  whatsoever."  This  also  disposes  of 
Professor  Vickers*  query  as  to  why,  otherwise,  foreigners  should  not 
be  wholly  exempt  from  payment  of  business  and  income  taxes,  a  part 
of  which  are  at  all  times  applied  to  military  purposes.  The  answer  is 
that  such  taxes  are  not  extraordinary  nor  depend  in  duration  on  war- 
like movements.  Thus,  whatever  construction  may  be  placed  upon  the 
wording  of  the  English  Treaty,  the  French  Treaty  does  not  appear  to 
admit  of  such  a  reading,  since  there  is  no  equivalent  phrase  in  the 
latter  for  the  "  Military  exactions  "  of  the  former.  These,  briefly,  are 
the  arguments  of  those  who  claim  that  foreigners  should  be  exempted 
from  the  increased  taxes.  As  stated  above,  any  exemption  from  the 
increase  in  the  indirect  tax,  such  as  the  consumption  tax,  the  increased 
tax  on  articles  of  food,  and  the  increased  import  duties,  is  impossible. 
There  remain,  however,  the  increases  in  the  Land,  Business,  Income, 
Registration,  Exchange,  Shooting  License,  and  Mining  Tax,  about  which 
there  should  be  no  difficulty.  The  inclusion  of  both  direct  and  indirect 
tax  in  the  law,  however,  seems  to  point  to  the  authorities  either  hav- 
ing considered  the  matter  and  decided  that  the  treaties  do  not  apply, 
or  else  having  neglected  to  give  any  thought  to  the  question.  This 
latter  is  very  improbable,  and  it  may  therefore  be  concluded  that  the 
authorities  intend  to  collect  the  taxes  from  foreigners  and  Japanese  alike. 
Those  who  claim  exemption  have  certainly  a  very  strong  case,  and  un- 
willing as  Japan  should  be  to  see  any  cause  of  friction  arise  between 
the  authorities  and  the  sympathetic  foreigners  who  reside  in  Japan,  the 
fact  is  natural  that  failure  to  abide  by  treaty  obligations  is  a  much 
more  serious  matter  and  likely  to  give  rise  to  much  more  serious  con- 
sequences. Cases  have  been  brought  under  our  notice — not  by  way  of 
complaint,  however — of  soldiers  being  billeted  on  foreigners  residing  in 
Tokyo,  an  action  quite  contrary  to  the  treaties.    This  is  a  small  matter, 


78  THE   OUTBREAK  OF   WAR.  [PART   I. 

and  the  foreigners  in  all  cases  referred  to  it  laughingly;  but  if  the 
treaties  are  infringed  in  one  instance,  there  is  a  probability  that  in- 
fringements may  be  made  in  another. 

Among  English  newspapers  published  in  Japan,  the  Japan 
Times,  the  Japan  Mail,  and  the  Japan  Daily  Advertiser,  were 
of  the  same  opinion  as  the  Japanese  Government  about  the 
matter.  Below  are  annexed  a  few  extracts  illustrative  of  their 
tone. 

Japan  Daily  Advertiser. 

Yokohama,  Monday,  April  25,  1904. 
War  Taxes. 

The  question  which  has  arisen  in  regard  to  the  liability  of  foreigners 
for  the  payment  of  taxes  raised  for  war  purposes  is  a  somewhat  un- 
gracious one,  especially  in  view  of  the  disposition  which  the  alien  com- 
munities here  have  shown  to  contribute  their  uttermost  in  aid  of  the 
various  benevolent  movements  for  the  relief  of  the  sufferers  from  the 
struggle.  The  mooting  of  the  question  may  be  taken  simply  as  an 
illustration  of  the  essential  difference  between  a  contribution  and  an 
exaction,  the  former  being  assented  to  with  the  utmost  cheerfulness  and 
good-will,  while  the  least  mention  of  a  tax  is  sure  to  awaken  a  protest 
and  a  desire  to  find  some  way  of  escaping  it. 

Much  stress  is  laid  upon  the  wording  of  the  provisions  upon  the  sub- 
ject in  the  Revised  Treaties,  the  clause  as  expressed  in  the  French  version 
being  much  more  explicit  and  seemingly  wider  in  scope  than  that  found 
in  the  English  rendering,  and  it  is  therefore  very  natural  that  the  issue 
should  be  raised.  In  all  questions  of  interpretation,  however,  an  en- 
deavour should  be  made  to  get  at  the  original  meaning  and  general 
purpose  of  the  insertion  of  the  clause  in  such  a  document  as  a  treaty. 
In  this  case,  if  we  mistake  not,  the  provision  is  based  upon  a  general 
understanding  between  nations  that  in  time  of  war  foreigners  dwelling 
in  the  land  of  a  belligerent  should  not  be  liable  to  military  duty  in  its 
behalf,  nor  be  subject  to  the  extraordinary  exactions  or  inconveniences 
often  incident  to  a  state  of  war,  such,  for  example,  as  having  troops 
quartered  upon  them  or  being  made  to  pay  commutation  for  exemption 
therefrom.  We  doubt  whether  it  was  the  original  intent  of  the  article 
upon  the  subject  in  the  Revised  Treaties  with  Japan  to  cover  anything 
more  in  this  regard,  but  that,  of  course,  is  a  question  for  the  inter- 
national lawyers  to  decide.  We  apprehend  that  in  this  case  it  will  be 
very  difficult  for  them  to  draw  the  line  in  regard  to  the  liability  of 
foreigners  to  share  the  national  burden.  It  is  quite  true  that  the  taxes 
laid  are  extraordinary  ones,  but  the  question  will  come  up  as  to  when 
they  began  to  be  extraordinary.  The  whole  period  of  preparation  for 
the  war,  necessitating  a  large  increase  of  the  nation's  armaments,  has 
been  marked  by  extraordinary  taxation  for  this  very  purpose,   a   fact 


CHAP.  IV.]  WAR  TAXES.  79 

which  would  seem  to  make  it  somewhat  late  now  for  foreigners  to  begin 
their  protest. 

Furthermore,  though  we  cannot  speak  with  absolute  assurance  upon 
the  matter,  we  are  under  the  impression  that  such  a  question  would  not 
be  likely  to  be  raised  in  a  western  land.  If  we  mistake  not,  during 
the  Civil  War  in  America  there  was  no  distinction  whatever  made  be- 
tween native  and  alien  residents  in  the  matter  of  paying  taxes  incident 
to  the  great  increase  in  the  burden  of  the  nation. 

It  will  be  far  better,  we  opine,  as  it  will  certainly  conduce  to  the 
maintenance  of  good  feeling,  to  have  the  matter  settled  upon  such  gen- 
eral grounds,  rather  than  to  have  it  descend  to  the  low  plane  of  quib- 
bling about  the  exact  meaning  or  the  interpretation  which  may  possibly 
he  put  upon  the  words  of  the  clause  in  a  treaty. 

A  key  to  this  somewhat  complicated  controversy,  so  zeal- 
ously fought  on  both  sides,  is  to  be  had  by  the  following  text 
in  the  Anglo-French  Treaty: 

Convention  conclue  a  Paris,  le  28  fevrier,  1882,  entre  la  France 
■et  la  Grand-Bretagne  pour  regler  les  relations  commerciales  des  deux 
pays. 

Art.  XI.  Les  ressortissants  de  chacun  des  deux  Etats  seront  ex- 
empts dans  l'autre,  de  tout  service  militaire,  de  toutes  requisitions  et 
contributions  de  guerre,  des  prets  et  emprunts  et  autres  contributions 
extraordinaires  qui  seraient  etablis  par  suite  de  circonstances  excep- 
tionelles,  en  tant  que  les  contributions  ne  seraient  pas  impos6es  sur 
la  propriete  fonciere. 

A  treaty  not  yet  abolished  is  still  available.  Notwithstand- 
ing the  existence  of  such  a  treaty  between  England  and  France, 
England  during  the  North  China  Affair  and  South- African  Dis- 
turbance imposed  war  taxes  on  foreigners  without  meeting  with 
any  apparent  objection  on  the  part  of  France  and  other  coun- 
tries. In  view  of  the  data  above  mentioned,  it  is  really  illogical 
to  find  such  a  strong  protest  against  a  similar  measure  resorted 
to  by  Japan  bound  by  similar  treaties. 

The  enlightened  English  public  was  convinced  by  the  above 
logic  of  the  legitimacy  of  the  Japanese  conduct,  and  began  to 
advocate  that  Englishmen  in  Japan  should  pay  war  taxes. 

On  the  26th  of  June,  1904,  the  British  Minister  to  Japan 
communicated  to  Baron  Komura  the  fact  that  the  British  Gov- 
ernment had   just   telegraphed   to   him   that   Art.    II.    of   the 


80  THE   OUTBREAK   OF  WAR.  [PART  L. 

treaty  between  Japan  and  Great  Britain  was  in  their  opinion 
not  applicable  in  the  present  instance,  and  that  the  British 
residents  in  Japan  could  not  invoke  that  article  for  exemption 
from  the  Extraordinary  Taxes. 


Great  Britain  and  Portugal. 

July  3,  1842. 
Art.  1. 

They  shall  be  exempt  from  forced  loans,  or  any  other  extraordinary  contributions  not 
general,  or  not  by  law  established,  and  from  all  military  service  by  sea,  or  by  land. 

Great  Britain  and  Russia. 

January  12,  1859. 
Art.  XIV.  The  subjects  of  either  of  the  two  high  contracting  Parties  in  the 
dominions  and  possessions  of  the  other,  shall  be  exempted  from  all  compulsory  military 
service  whatever,  whether  in  the  army,  navy,  national  guard  or  militia.  They  shall  be 
equally  exempted  from  all  judicial  and  municipal  charges  and  functions  whatever, 
as  well  as  from  all  contributions,  whether  pecuniary  or  in  kind,  imposed  as  a  compen- 
sation for  personal  service;  and,  finally,  from  forced  loans  and  military  exactions  or  re- 
quisitions. 

Great  Britain  and  Italy. 

August  6,  1863. 
Art.  XV.  The  subjects  of  each  of  the  contracting  Parties  in  the  dominions  and 
possessions  of  the  other  shall  be  exempted  from  all  compulsory  military  service  whatever, 
whether  in  the  army,  navy,  national  guard  or  militia.  They  shall  be  equally  exempted 
from  all  judicial  and  municipal  functions  whatever,  as  well  as  from  all  contributions, 
whether  pecuniary  or  in  kind,  imposed  as  a  compensation  for  personal  service;  and, 
finally,  from  forced  loans  and  military  exactions  or  requisitions. 

The  United  States  and  Nicaragua. 

June  20,  1868. 
Art.  IX.,  2.  The  citizens  of  the  United  States  resident  in  the  Republic  of  Nicar- 
agua, and  the  citizens  of  Nicaragua  resident  in  the  United  States,  shall  be  exempted 
from  all  forced  or  compulsory  military  service  whatever,  by  land  or  sea;  from  all  con- 
tributions of  war,  military  exactions,  or  forced  loans  in  time  of  war;  but  they  shall  be 
obliged,  in  the  same  manner  as  the  citizens  of  each  nation,  to  pay  lawful  taxes,  municipal 
and  other  modes  of  imposts  and  ordinary  charges,  loans,  and  contributions  in  time  of 
peace  (as  the  citizens  of  the  country  are  liable),  in  just  proportion  to  the  property 
owned. 


The  United  States  and  Italy. 

February  26,  1871. 


Art.  III. 


They  shall,  however,  be  exempt  in  their  respective  territories  from  compulsory  military 
service,  either  on  land  or  sea,  in  the  regular  forces,  in  the  national  guard,  or  in  the  militia. 
They  shall  likewise  be  exempt  from  any  judicial  or  municipal  office,  and  from  any  contri- 
bution whatever  in  kind  or  in  money,  to  be  levied  in  compensation  for  personal  services. 

Greece  and  Spain. 

August  9-21,  1875. 

Art.  I.,  Parg.  3.     lis  seront  exempts  de  toute  charge  ou  emploi  municipal  et 

de  tout  service  personel,  soit  les  armees  de  terre  ou  de  mer,  soit  dans  la  garde  ou  milice 

nationale,  ainsi  que  de  toutes  requisitions  ou  services  speciaux  de  la  milice  et  de  toute 

contribution  extraordinaire  de  guerre  ou  emprunt  force,  en  taount  que  ces  contributions. 

et  emprunts  ne  seront  pas  imposes  sur  la  propriety  fonciere. 


CHAP.  IV.]  WAR   TAXES.  81 


The  United  States  and  Peru. 

August  31,  1887. 
Art.  II 

;  they  shall  not  be  called  upon  for  any  forced  loan  or  extraordinary  contribu- 
tion for  any  military  expedition,  or  for  any  public  purpose  whatever,  nor  shall  they  be 
liable  to  any  embargo,  or  be  detained  with  their  vessels,  cargoes,  merchandise,  goods 
or  effects,  without  being  allowed  therefor  a  full  and  sufficient  indemnification,  which 
shall  be  paid  in  advance. 

The  United  States  and  Servia. 

For  Facilitating  and  Developing  Commercial  Relations.     (Signed  at  Belgrade, 
October  2-14,  1881.) 

Art.  IV.  Citizens  of  the  United  States  in  Servia  and  Servian  subjects  in  the 
United  States  shall  be  reciprocally  exempted  from  all  personal  service,  whether  in  the 
army  by  land  or  by  sea;  whether  in  the  national  guard  or  militia;  from  billeting;  from 
all  contributions,  whether  pecuniary  or  in  kind,  destined  as  a  compensation  for  personal 
service;  from  all  forced  loans,  and  from  all  military  exactions  or  requisitions.  The 
liabilities,  however,  arising  out  of  the  possession  of  real  property,  and  for  military  loans 
and  requisitions  to  which  all  the  natives  might  be  called  upon  to  contribute  as  proprietors 
of  real  property  or  as  farmers,  shall  be  excepted. 


CHAPTER    V. 

TRADING  WITH  THE  ENEMY  AND  PROHIBITION 
OF  THE  EXPORT  OF  GOODS  FOR  WARLIKE 
PURPOSES. 

Is  it  lawful  or  not  for  an  individual  of  one  belligerent  na- 
tion to  trade  with  an  individual  of  the  other,  when  all  their 
diplomatic  agents  and  consuls  have  withdrawn  from  both  coun- 
tries, as  a  natural  consequence  of  hostilities?  There  are  two 
sorts  of  arguments  upon  this  point:  Those  of  the  first  school 
argue  against  trading  with  enemies  under  such  circumstances, 
on  the  ground  that  when  hostilities  once  begin,  the  trade  and 
communication  between  the  belligerent  subjects,  unless  specially 
permitted,  is  implicitly  prohibited  without  any  special  notice; 
and,  according  to  them,  those  who  act  contrary  to  this,  are  to 
be  duly  punished  as  trading  with  the  enemy.  But,  those  of 
the  other  school,  confine  hostilities  to  affairs  between  two  states, 
without  extending  the  same  relation  to  individuals,  so  that  it 
naturally  follows  that  trading  between  subjects  of  the  belliger- 
ent nations  may  be  independent  of  national  hostilities.  Some 
of  this  school  try  to  reinforce  their  argument  by  the  theory 
that  "  trading  liberty,  being  a  natural  right  of  mankind,  cannot 
be  interfered  with  by  any  warfare." 

Believing  that  the  readers  of  these  pages  are  already  well 
acquainted  with  the  ordinary  arguments  on  the  point  in  ques- 
tion, a  series  of  facts  illustrative  of  the  Japanese  practice  re- 
specting trading  liberty  will  be  set  forth,  instead  of  going  any 
further  into  these  theoretical  discussions. 

Cases  during  the  Chino- Japanese  War. 
Though   ultimately   fruitless,   in   the   earlier   days   of   the 
Ohino-Japanese    War,    the    Japanese    Government    negotiated 

82 


CHAP.  V.]  TRADING   WITH   THE   ENEMY.  83 


with  the  Chinese  Government,  through  the  American  Minister, 
about  the  exemption  of  private  property  from  capture  at 
sea.1 

A  certain  case  induced  a  strict  discussion  in  the  Japanese 
Cabinet  at  that  time  upon  the  lawlessness  of  a  Japanese  subject 
trading  with  the  Chinese. 

A  certain  Japanese  contrived  to  supply  China  with  coal 
through  the  medium  of  a  neutral  then  residing  in  Japan.  In 
the  end,  the  Japanese  Government  took  no  measures  against  it. 
Here  is  the  opinion  on  the  case  of  Professor  Ariga.2 

La  deuxieme  question  a  laquelle  donna  lieu  l'elaboration  du  decret 3 
se  rapportait  au  commerce  des  pays  en  lutte.  II  existe  sur  ce  point; 
en  droit  international,  deux  systemes  differents.  L'un  consiste  a  pro- 
hiber,  en  principe,  le  commerce  entre  les  sujets  du  pays  et  ceux  de 
l'adversaire,  sauf  la  reserve  d'une  autorisation  particuliSre  (licence) 
qui  est  aecordee  en  faveur  de  certains  objets,  de  certaines  localites, 
de  certaines  personnes  ou  colectivites.  Tel  est  le  syst^me  suivi,  notam- 
ment,  par  la  France,  l'Angleterre,  les  Etats-Unis  de  l'Amerique  du 
Nord,  la  Hollande  et  l'Espagne.  Cette  doctrine  a  regu  une  applica- 
tion rigoureuse  principalement  dans  les  trois  premiers  de  ces  Etats. 
Le  second  systeme  reconnait  comme  regie  la  liberte  du  commerce: 
celle-ci  ne  peut  §tre  limitee  que  par  des  lois  faits  expressement  dans 
ce  but,  et  les  restrictions  qu'elles  edictent  ne  doivent  pas  etre  Vendues. 
Cest  la  thgorie  qui  domine  en  Allemagne,  et,  bien  qu'ell  ne  soit 
pas  encore  adoptee  par  l'unanimite  des  jurisconsultes  de  ce  pays,  elle 
s'accorde  bien  avec  la  tendance  actuelle  du  droit  international  en 
temps  de  guerre:  la  guerre  est  une  affaire  d'Etat  a  Etat,  non  d'indiv- 
idus  a  individus.  Dans  la  guerre  de  1860  contre  la  Chine,  la  France 
et  l'Angleterre  elle-meme  autoris£rent  leurs  nationaux  a  commercer 
avec  le  pays  ennemi.  De  ces  deux  systemes  si  opposes,  le  gouvernement 
japonais,  par  des  raisons  theoriques  et  pratiques,  n'hgsita  pas  a  pr6- 
ferer  le  second. 

La  liberte*  du  commerce  est  un  des  droits  naturels  de  Phomme, 
il  n'y  a  aucun  motif  pour  qu'elle  soit  supprimSe  de  plein  droit  par 
la  guerre.  Si  des  considerations  militaires  l'exigent,  il  est  d'ailleurs 
toujours  facile  d'6mettre  un  order  prohibitif  interdisant  le  commerce 
de  certains  objets.     Les  considerations  pratiques  qui  d£termin£rent  le 

1  The  author's  Cases  on  International  Law  during  the  Chino-  Japanese  War,  pp.  9-10. 

2  Ariga,  La  Guerre  Sino-Japonaise  au  Point  de  Vue  du  Droit  International,  pp.  27-28. 

3  D6cret  Imperial  du  4  aout  1894,  relatif  a  la  protection  dea  Chinois  au  Japon. 


84  THE   OUTBREAK   OF  WAR.  #         [PART  U 

gouvernement  imperial  n'Staient  pas  sans  valeur.  La  prohibition  du 
commerce  avec  Chine  devait  nuire  au  dSveloppement  economique  du 
Japon.  Au  debut  de  la  guerre,  des  journaux  japonais  avaient  con- 
stats que  des  negociants  Strangers  achetaient  du  charbon  de  terre  au 
Japon  pour  le  revendre  a  la  Chine,  et  ils  avaient  fait  entendre  a  ce 
sujet  de  vives  protestations.  Le  gouvernement  ne  crut  pas  devoir 
tenir  compte  de  ces  reproches.  II  pensa,  non  sans  raison,  que  la 
Chine  ne  serait  point  dans  Pembarras,  quand  mSme  elle  ne  recevrait 
pas  du  Japon  le  charbon  dont  elle  avait  besom;  elle  s'adresserait 
alors,  pour  se  le  procurer,  a  PAngleterre  ou  a  tout  autre  pays  Stran- 
ger. De  la  sorte,  Podre  prohibitif  du  Japon  n'aurait  servi  qu'a 
lui  faire  perdre  un  dSbouche"  pour  ses  charbons;  de  ce  fait,  sans  aucune 
compensation,  le  pays  aurait  subi  un  prejudice  considerable.  C'est 
pour  cela  que  Particle  ler  a  stipule"  que  les  Chinois  .residant  au  Ja- 
pon pourraient  continuer  a  vaquer  a  leurs  occupations  legales  et 
pacifiques. 

Thus,  while  engaged  in  hostilities  with  China,  the  export 
of  coal  to  the  enemy's  land  was  winked  at  by  the  Japanese 
Government;  and  if  winking  at  may  be  considered  synonymous 
with  implied  recognition,  the  principle  of  the  Japanese  Gov- 
ernment adhered  to  at  that  time  must  have  been  the  opposite 
of  the  prohibition  of  trading  with  the  enemy.  However, 
the  absence  of  any  settled  principle  whatever  most  probably 
induced  the  Japanese  Government  to  take  such  an  indulgent 
step. 

Later  on,  even  during  the  Eusso-Japanese  War,  no  definite 
declaration  was  made  on  this  subject,  so  that  the  author  will 
propose  his  own  argument  towards  the  end  of  the  present 
chapter. 

In  the  course  of  the  Russo-Japanese  War,  a  case  happened 
which  involved  the  Japanese  prohibition  of  exporting  a  certain 
sort  of  goods,  not  only  destined  for  the  enemy,  but  also  for  a 
neutral  port. 

It  should  be  remarked  in  passing  that  horses  were  prohib- 
ited from  exportation  during  the  Chino-Japanese  War  and 
the  North  China  Affair.  And  the  reader  should  remember  that 
the  prohibition  of  exporting  goods  implies  the  prohibition  of 
trading  with  the  enemy,  as  a  part  of  its  provisions;  at  any  rate 


€HAP.  V.]  TRADING  WITH  THE   ENEMY.  85 

this  is  the  case  when  the  goods  are  destined  for  the  enemy  or 
a  neutral  state  or  their  subjects.1 

Below  are  arranged  various  cases  bearing  on  this  point 
which  took  place  during  the  Eusso-Japanese  War. 

In  May,  1905,  the  Japanese  Minister  of  the  Army  and 
Navy  addressed  the  following  letter  to  the  Minister  of  Home 
Affairs : 

We  request  you  to  interdict  for  the  time  being  the  exportation 
of  any  coal,  on  the  suspicion  of  its  being  used  by  the  enemy's  forces. 

P.S. — The  supervision  we  are  attempting  with  the  above  purpose 
needs  to  be  supplemented  by  yours. 

Cases  of  interdiction  were  as  follows: 

The  British  S.  S.  Hatasu.     Consignor:  Midushima  Branch  at  Moji. 

The  steamer  above  mentioned  was  prohibited,  on  the  16th  of  May, 
from  exporting  4500  tons  of  coal,  consigned  to  the  branch  of  M.  M.  & 
Company  at   Saigon. 

The  name  of  the  steamer,  uncertain.  Consignor:  Midushima  Branch 
at  Moji. 

The  steamer  above  mentioned  was  prohibited,  on  the  22nd  May, 
from  exporting  15,000  tons  of  coal  consigned  to  the  branch  of  M.'M. 
&  Company  at  Singapore. 

The  British  S.  S.  Hatasu.    Consignor:  Takashima  Co.  at  Moji. 

The  steamer  above  mentioned  was  prohibited,  on  the  22nd  May, 
from  exporting  7500  tons  of  coal  consigned  to  Messrs.  Shewan,  Tomes 
&  Co.  at  Hongkong. 

The  British  S.  S.  Langdale.    Consignor:  Midushima  Branch  at -Moji. 

The  steamer  above  mentioned  was  prohibitd,  on  the  23rd  May, 
from  exporting  5000  tons  of  coal  consigned  to  Messrs.  Shewan,  Tomes 
&  Co.  at  Hongkong. 

The  British  S.  S Consignor:  Uryu  &  Co. 

Loaded  with  6200  tons  of  coal,  destined  for  Tokunaga  &  Co.  at 
Hongkong,  and  with  2300  tons  of  coal  destined  for  Hongkong. 

The  American  S.  S . .      Consignor:  Yasukawa  &  Co. 

Loaded  with  4700  tons  of  coal  destined  for  Hongkong. 

On  May  26,  1905,  the  steamers  hereinafter  mentioned  were  also 
stopped. 

1  It  must  be  also  noticed  that  Contraband  of  war  is  not  the  same  as  goods  prohibited 
to  export;  because  the  contraband  is  destined  for  the  Enemy's  territory  or  sometimes  to 
the  army  or  navy  In  the  Enemy's  territory,  or  Enemy's  warships  on  the  high  seas. 


86  THE   OUTBREAK  OF  WAR.  [PART  fc 

The  British  S.  S.  Hermiston,  loaded  with  5600  tons  of  coal  destined 
for  Singapore. 

The  Norwegian  S.  S.  Oscar  II.,  loaded  with  4000  tons  of  coal  des- 
tined for  Hongkong. 

A  complaint  was  made,  referring  to  the  cases  of  the  Hatasu 
and  Langdale,  on  May  25,  1905,  as  follows: 

The  British  S.  S.  Hatasu  was  chartered  in  the  middle  of  the  pres- 
ent month  to  take  coal  from  Moji  to  Saigon,  but  the  work  of  loading 
was  stopped  by  the  local  authorities  on  the  16th  instant,  as  the  ex- 
port of  coal  from  Japan  to  Saigon  had  been  prohibited. 

The  agents  of  the  vessel  accordingly  cancelled  their  previous  con- 
tract, and  made  a  fresh  contract  with  the  Japanese  firm  of  Messrs. 
Takashina  to  convey  a  cargo  of  their  coal  to  Hongkong  on  account  of 
the  firm  of  Messrs.  Shewan  &  Tomes. 

The  representative  of  this  latter  firm  declared  that  the  coal  was- 
destined  for  Hongkong  and  would  be  consumed  there. 

However,  the  local  authorities  still  refused  to  allow  the  coal  to  be 
loaded,  on  the  ground  that  orders  to  that  effect  had  been  received  from 
the  Imperial  Government.  It  would  appear  that  another  steamer 
named  the  Langdale  was  similarly  prevented  from  being  consigned  to 
the  same  firm,  although  other  British  vessels  were  being  allowed  to 
load  coal  for  conveyance  to  Hongkong. 

The  affair  was  settled  by  a  notification  from  the  Japanese 
Government  containing  the  essential  principles  by  which  im- 
partial treatment  was  dealt;  and  the  fact  that  the  Hatasu 
and  the  other  steamer  could  not  be  considered  as  treated  with 
particular  disfavour  was  fully  explained.  The  following  is  the 
Regulation  at  that  time  concerning  the  coal  export: 

Disciplinary  Regulations  of  Coal  Export. 

1.  The  consignor  or  the  consignee  shall  send  in  as  caution-money 
twice  the  estimated  cost  of  the  coal  to  be  exported  to  the  Custom- 
house of  the  locality  whence  the  shipment  is  to  be  sent  out.  In- 
stead of  the  caution-money  above  mentioned,  there  may  be  substituted, 
if  sanction  is  given  by  the  Custom-house,  a  letter  of  security,  signed 
by  a  bail,  if  found  necessary. 

2.  The  consignor  or  the  consignee  shall  recover  the  caution-money 
or  the  letter  of  security,  by  sending  in  a  certificate  from  the  Japanese 
consul    (or   authorities   nominated   by    the   Custom-house   of   the   port 


CHAP.  V.]  TRADING   WITH   THE   ENEMY.  87 

of  export)  certifying  that  the  said  coal  was  unloaded  at  the  proper 
port  named. 

If  the  certificate  be  not  sent  in  within  60  days  from  the  date  of 
export,  the  caution-money,  or  the  face  value  of  the  letter  of  security, 
shall  be  exacted. 

3.  An  export  by  a  vessel,  destined  for,  or  calling  at,  a  port  where 
a  man-of-war  belonging  to  the  enemy  is,  or  so  expected  in  the  future,, 
may  be  subjected  to  prohibition. 

The  decision  will  be  given  by  naval  authorities. 

The  Author's  Opinion  on  Trading  with  the  Enemy.1 

As  for  the  provision  for  the  future,  I  am  not  without  opin- 
ion on  what  course  we  should  take  with  regard  to  trading  with 
the  enemy. 

Here  I  quote  one  theory  and  one  precedent  out  of  many 
English  articles  on  trading  with  the  enemy,  upon  which  I  be- 
lieve our  future  course  may  be  safely  based: 

Property  of  Allies'  subjects  trading  with  enemy  confiscable.  (Pitt- 
Cobbett,  p.  175.) 

The  Neptunus,  1807.     6e,  Rob.  403. 

This  case  is  cited  as  illustrating  the  application  of  the  rule  of 
trading  with  the  enemy  as  between  allies. 

(Case) — During  war  between  Great  Britain  and  Holland,  a  ship 
belonging  to  a  subject  of  Sweden,  one  of  the  allies  of  Great  Britain, 
was  captured  by  a  British  cruiser  while  on  a  voyage  from  Amster- 
dam with  a  cargo  of  pitch  and  tar.  She  was  brought  in  for  adjudi- 
cation, and  at  the  trial  the  case  turned  on  the  effect  of  a  modified 
permission  to  trade  with  the  common  enemy  in  innocent  articles  on 
the  part  of  an  ally  in  the  war. 

(Judgment) — Sir  W.  Scott,  in  his  judgment,  .stated  that  as  be- 
tween allies  it  must  be  taken  as  an  implied,  if  not  an  expressed  con- 
tract, that  one  state  should  not  do  anything  to  defeat  the  common 
object  and  interest.  If  one  state  permitted  its  subjects  to  carry  on  an 
uninterrupted  trade  with  the  enemy,  the  consequence  might  be  to  sup- 
ply aid  and  comfort  to  the  enemy,  which  might  prove  very  injurious 
to  the  prosecution  of  the  common  cause  and  the  interests  of  its  ally. 

It  was  not  enough  to  show  that  no  state  allowed  this  practice 
to  its  own  subjects;  but  it  must  be  shown,  either  that  the  practice 
was  of  such  a  nature  as  could  in  no  manner  interfere  with  the  com- 

1  An  article  prepared  at  the  request  of  the  Japanese  Navy  during  the  War. 


88 


y  THE   OUTBREAK   OF  WAR.  [PART 


mon  operations  or  that  such  trade  had  the  permission  of  the  allied 
state.  There  being  no  such  circumstances  in  the  present  case,  the 
goods  were  therefore  pronounced  liable  to  condemnation. 

According  to  Sir  W.  Scott,  an  alliance  treaty,  unless  other- 
wise clearly  contracted,  presupposes  that  neither  of  the  allies 
shall  act  in  such  a  manner  as  to  interfere  in  any  way  with  the 
common  interest  and  cause.  Hence  if  either  of  the  allies  in- 
sists on  trading  freedom,  whereas  the  other  perseveres  in  prohi- 
bition, the  natural  consequence  must  be  the  supplying  of  the 
common  enemy  with  assistance  and  convenience;  that  is  to  say, 
injuring  the  common  interest  and  cause  of  the  alliance. 

In  this  way  our  free  theory,  as  long  as  England,  our  ally, 
condemns  allied  subjects  trading  with  the  common  enemy,  must 
lead  to  no  other  result  than  to  defeat  the  purport  of  our  alli- 
ance implied  as  Sir  W.  Scott  states;  and  to  make  our  ships, 
although  acting  according  to  our  law,  liable  to  English  capture, 
in  case  England  and  Japan  come  some  day  to  fight  against  a 
common  enemy. 

Thus  it  must  be  practically  imprudent  for  Japan  to  insist 
on  trading  freedom  in  view  of  the  English  prohibition  policy. 

Hence  as  for  the  problem  how  far  our  ships  may  maintain 
trading  relations  with  the  enemy,  the  same  regulations  and  lim- 
its as  those  held  by  our  ally  may  be  recommended  as  adequate; 
for  otherwise  our  merchant  ships  will  be  exposed  to  capture 
by  English  warships.  In  other  words,  our  maritime  trade 
should  be  regulated  by  the  same  prohibition  policy  as  the  Eng- 
lish; limiting  our  subjects'  trading  with  the  enemy  to  certain 
places,  articles,  and  persons. 

Some  will  perhaps  deem  such  a  measure  injurious  to  our 
economic  welfare,  but  their  anxiety  may  be  easily  refuted  if 
they  bear  in  mind  that  the  English  policy  is  far  from  being  an 
absolute  check  on  trade,  but  means  simply  trading  under  special 
permission. 


PAET  II. 

THE  LAWS  AND  CUSTOMS  OF 
LAND   WARFARE. 


CHAPTER   I. 
COMBATANTS. 

The  qualifications  of  a  combatant  have  remained  a  question 
for  many  centuries ;  as,  for  instance,  it  occasioned  fervent  differ- 
ences of  opinion  in  the  course  of  the  Franco-Prussian  War  of 
1870,  until  a  definite  decision  was  reached  as  the  result  of 
The  Hague  Conference. 

Art.  I.  The  laws,  rights,  and  obligations  of  war  apply,  not  only 
to  the  army,  but  also  to  militia  forces  and  to  bodies  of  volunteers,, 
which  combine  the   following  conditions: 

(1)  Having  at  their  head  a  person  responsible  for  his  subordinates; 

(2)  Having  a  fixed,  distinctive  badge,  recognisable  at  a  distance; 

(3)  Carrying  arms  openly;  and 

(4)  Conforming  in  their  operations  to  the  laws  and  usages  of  war. 
In  countries  in  which  the  militia  or  volunteers  compose  the  army,  or 

form  a  part  of  it,  they  are  included  under  the  designation  of  "  army." 
Art.  II.  The  population  of  a  non-occupied  territory  who,  at  the 
approach  of  the  enemy,  take  up  arms  spontaneously  in  order  to  re- 
sist the  troops  of  invasion,  without  having  had  time  to  organise  in 
conformity  to  Art.  I.,  shall  be  considered  as  belligerents  if  they  observe 
the  laws  and  usages  of  war. 

The  principle  Japan  kept  in  view  was  to  abstain  from  adopt- 
ing the  system  of  volunteers  or  levees  en  masse,  as  is  well  exem- 
plified by  the  Imperial  Ordinance  of  8th  August,  1894,  which 
expressly  disapproved  the  Organisation  of  a  volunteer  com- 
pany. The  following  is  from  Dr.  Ariga's  work  on  the  Chino- 
Japanese  War : l 

1  Ariga's  La  guerre  Sino-Japonaise,  pp.  35-38. 
89 


90  LAWS   OF  LAND   WARFARE.  [PART   II. 

Decision  impgriale  sur  la  formation  de  bataillons  de  volontaires  et 
dScret  y  relatif  du  8  aout  1894. 

Au  Japon,  le  "  volontariat "  n'est  pas  un  moyen  de  recrutement  de 
l'armee  regulifcre.  Mais,  lorsque  les  Svenements  de  Corge  £claterent, 
des  Japonais,  dans  les  diverses  provinces,  adress&rent  a  leur  gouverne- 
ment  des  petitions  pour  obtenir  l'autorisation  d'organiser  des  batail- 
lons de  volontaires  contre  la  Chine.  Des  que  la  guerre  fut  dSclaree. 
ces  petitions  devinrent  de  plus  en  plus  nombreuses  on  vit  les  d£legu6s 
des  provinces  assieger  en  foule  le  ministere  de  la  guerre. 

Si  Ton  jette  aujourd'hui  un  regard  rgtrospectif  sur  les  derniers 
evenements,  il  est  facile  de  juger  des  forces  respectives  des  deux  em- 
pires. On  peut  se  convainere  que  les  Japonais  n'avaient,  en  definitive, 
nullement  besoin  d'auxiliaires.  Mais,  au  debut  de  la -guerre,  personne 
ne  pouvait  apprgcier  a  leur  juste  valeur  les  forces  militaires  de  la 
Chine;  beaucoup  devaient  considerer  comme  un  adversaire  redoutable 
les  troupes  de  Li-Hong-Chang  et  lea  cavaliers  mandchouriens.  II  6tait 
done  tout  naturel  que  les  patriotes  japonais  eussent  quelque  inquie- 
tude sur  Tissue  de  la  lutte  et  voulussent  venir  en  aide  a  leur  pays  en 
organisant  des  bataillons  de  volontaires.  Si  ces  vStgrans  japonais,  qui 
etaient  fort  nombreux  dans  PEmpire  et  qui  etaient  parfaitement  ex- 
erces  au  maniement  des  armes,  avaient  en  la  permission  de  passer  en 
Chine  et  d'y  agir  en  toute  liberty,  arm6s  de  leurs  sabres  rendus  sacrgs 
par  tant  de  faits  brillants  de  leurs  anc§tres,  il  en  fut  requite"  pour  le 
gouvernement  de  P6kin,  une  situation  oraiment  grave.  lis  eussent 
ete  pour  lui  des  ennemis  fort  seneux;  car  la  longue  tranquility  dans 
laquelle  le  Japon  avait  vecu  jusqu'ici  pesait  a  leur  ardeur  guerriere. 
Une  semblable  organisation  eut  ete*  cependant  parfaitement  legale  he 
•droit  de  faire  usage  de  combattants  irreguliers  appartient  a  l'Etat 
qui  prend  Poffensive  aussi  bien  qu'a  celui  qui  est  sur  la  defensive. 

Le  Japon  n'aurait  done  pas  fait  un  acte  indigne  en  permettant  a 
ses  volontaires  de  traverser  la  mer  apres  les  avoir  embrigadgs  et  re- 
vgtus  d'un  uniforme  ou  de  quelque  autre  signe  distinctif.  On  eut  pu 
d'autant  moins  lui  faire  de  reproches  a  cet  egard  que  le  gouvernement 
de  Pekin,  obstine  dans  ses  vieilles  habitudes,  ferme*  aux  idees  des  na- 
tions civilisees,  se  refusait  a  faire  aucune  distinction  entre  les  com- 
battants et  les  non-combattants :  ce  gouvernement,  pour  exciter  son 
peuple  a  register  a  l'armee  japonaise,  avait  en  Pid6e  barbare  d'apposer 
dans  les  villes  et  les  villages  affiches  ou  il  promettait  un  certain 
nombre  de  taels  a  ceux  qui  rapporteraient  la  tete  d'un  general,  d'un 
officier,  d'un  fonctionnaire  ou  d'un  soldat  japonais;  la  recompense 
variait  selont  le  grade  et  la  quality  de  la  victime.1 

1  Ce  fait  est  confirme  par  la  Revue  generate  de  droit  international  public,  t.  II.  1895, 
p.  123. 


CHAP.  I.]  COMBATANTS.  91 

Notre  Empereur  pensa  toutefois  que  des  volontaires,  qui  n'avaient 
pas  regu  Pinstruction  militaire  d'une  mani&re  habituelle  et  constant^ 
ne  devaient  pas  valoir  les  combattants  reguliers  au  point  de  vue  de  la 
discipline;  il  craignit  que,  par  leur  fait,  la  dignite  de  Parmee  de  PEm- 
pire  ne  vint  a  se  trouver  compromise.  Aussi  n'hesita-t-il  point  a 
refuser  leurs  services.  II  fit  connaitre  ses  intentions  par  un  decret 
progulgue*  le  8  aout,  qui  6tait  ainsi  congu: 

Nous,  par  la  protection  de  nos  ai'eux  et  le  concours  de  notre  peu- 
ple,  esperons  maintenir  et  rauvegarder  Phonneur  et  la  gloire  de  la 
nation  avec  Pappui  de  nos  forces  de  terre  et  de  mer. 

Nous  sommes  convaincu  que  l'organisation  du  volontariat  par  nos 
sujets  des  diverses  parties  de  l'Empire  est  une  manifestation  de  leurs 
sentiments  les  plus  intimes  de  denouement  et  de  petriotisme. 

L'Etat  a  ses  organes  necessaires  et  le  peuple  a  ses  occupations  con- 
stantes.  Nous  souhaitons  que,  liors  le  cas  de  requisitions  extraor- 
dinaires,  nos  sujets  ne  neglisent  pas  leurs  occupations  ordinaires,  au 
prejudice  du  developpement  de  plus  en  plus  grand  de  la  puissance 
productive  du  pays  et  de  l'entretien  des  elements  de  notre  force  et 
de  notre  richesse. 

Nous  ne  saurions  done  reconnaitre  dans  la  circonstance  actuelle 
Putilite  du  volontariat.  Nous  prescrivons  a  nos  autorites  locales  de 
donner  les  instructions  necessaires,  en  conformite  de  cette  intention. 

Les  armies  d'expedftion  japonaises  furent  done  organisees  avec  des 
combattants  reguliers,  seuls  dignes  de  figurer  dans  les  troupes  de  terre 
d'une  nation  civilisee.  Ces  armees  comprenaient  deux  groupes  dis- 
tincts.  Le  premier,  que  commanda  le  marechal  Yamagata,  s'avanga  en 
Chine  par  la  voie  de  Corge  a  destination  de  Moukden;  le  second,  qui 
eut  a  sa  tete  le  marechal  Oyama,  debarqua  directement  a  la  presqu'ile 
de  Lia-Tong,  et  se  proposa  de  s'emparer  de  Port-Arthur  ainsi  que  de 
Wei -Hal- Wei,  les  deux  clefs  du  golfe  de  Petchili.1 

The  same  principle  was  preserved  also  during  the  Eusso- 
Japanese  War;  although  the  sole  exception  happened  when 
Japanese  residents  at  Hwang-ju,  Korea,  organised  a  volunteer 
company  under  pressing  circumstances.  The  fact  was  substan- 
tially as  follows : 2 

Prior  to  the  arrival  of  the  First  Army  at  Hwang-ju,  Japa- 
nese residents  there  found  themselves  already  exposed  any  mo- 
ment to  assaults  of  Eussian  troops,  who  might  descend  from 
the  north,   and  that  the  Korean  forces   stationed  there  were 

1  Cases  on  International  Law  during  the  Chino-Japanese  War,  p.  171. 

2  A.  Ninagawa,  KurokVs  Army  and  International  Law,  pp.  51-52. 


92  LAWS   OF  LAND   WARFARE.  [PART  II. 

entirely  ineffective  to  provide  for  such  an  emergency;  so  that  a 
volunteer  company  was  formed  by  forty-eight  men  who  were 
not  the  heads  of  families. 

The  Japanese  Volunteers  at  Hwang-ju,  as  well  becomes  civ- 
ilised people,  acted  in  perfect  conformity  with  the  stipulations 
of  The  Hague  Conference. 

1.  The  Japanese  Volunteers  at  Hwang-ju  were  led  by  a 
certain  member  of  the  Japanese  consulate  there  who  was  to  be 
responsible  for  what  his  men  might  do. 

2.  They  were  in  western  dress  with  a  red  blossom-shaped 
badge  pinned  on  their  breasts,  and  had  a  helmet  cap  covered 
with  white. 

3.  Each  of  them  was  armed  with  a  Schneider  musket. 

4.  Their  conduct  was  regulated  by  martial  laws  and 
usages.  They  were,  however,  dissolved,  without  any  actual  en- 
gagement, on  the  arrival  of  the  van  of  Japan's  First  Army. 

Thus  even  this  exception  should  be  considered  as  a  device 
resorted  to  under  special  circumstances  by  Japanese  residents 
at  Hwang-ju,  and  not  as  anything  like  a  levee  en  masse  pro- 
jected by  the  Japanese  Government. 

In  the  course  of  the  war,  Eussia  organised  a  volunteer 
company  in  accordance  with  the  Kussian  Mobilisation  order 
issued  at  the  outbreak  of  the  war,  which  was  to  be  directed 
for  the  defence  of  Saghalien  and  the  East  China  Kailway,  ac- 
cording to  information  furnished  on  July  29,  1904,  by  a  Berlin 
correspondent. 

.  The  United  States  Charge  d' Affaires  in  St.  Petersburg  trans- 
mitted to  the  Japanese  Minister  at  Berlin  a  communication 
of  the  Eussian  Government,  dated  July  26th,  in  which  the 
latter  requested  communication  to  be  made  to  the  Japanese 
Government  of  the  formation  of  free  companies  of  militia 
composed  of  Eussian  people  in  the  Maritime  Province,  in  the 
island  of  Sakhalin,  and  along  the  East  China  Eailway  line. 
Free  companies  of  militia  were  to  serve  as  guards,  and  in  case 
of  necessity  as  combatants,  for  which  purpose  the  militia  was 
furnished  by  the  State  with  rifles  and  arms,  without  wearing 


CHAP.  I.]  COMBATANTS.  93 

special  uniform.  They  had,  as  a  distinctive  mark  of  their 
belonging  to  the  army,  a  cross  on  the  head  cover  for  East 
China  Railways.  "  M.D."  (Manchouria  Drujina)  is  fixed  on 
the  cross  for  Saghalien.  Besides  the  distinctive  cross,  the 
militia  wear  on  the  sleeve  a  red  stripe  a  half  werschoh  wide, 
red  button-holes  on  the  collar,  and  on  the  top  of  their  cap  a 
narrow  red  band. 

Concerning  the  organisation  of  the  volunteer  company 
above  mentioned,  an  American-  paper  of  August  6th,  1904,  con- 
tained the  following  criticism: 

"  The  strange  rumour  that  the  Eussian  Government  was 
going  to  organise  a  volunteer  company  of  Saghalien  exiles 
seems  to  have  been  confirmed  by  recent  declaration. 

"  The  Russian  exiles,  mostly  engaged  in  collieries,  are  un- 
paralleled in  their  ferocity,  and  may  be  regarded  as  beasts 
rather  than  men.  Of  these  exiles  the  promised  volunteer  com- 
pany was  to  be  organised  not  by  voluntary  enlistment,  but  by 
compulsory  conscription,  offering  by  way  of  reward  the  shorten- 
ing of  the  term  of  punishment,  by  reckoning  every  two  months 
in  the  army  as  one  year  of  punishment. 

"  Such  a  contrivance  could  not  be  accepted  as  alleviating 
in  any  way  the  grimness  of  war." 

Though  somewhat  harsh,  the  above  well  suggests  what  truth 
and  law  dictate. 


CHAPTEK    II. 
PRISONERS    OF   WAR. 

Sect.  I.     Treatment  of  Prisoners.1 

During  the  Russo-Japanese  War  there  were  85,544  Rus- 
sians, including  men  in  medical  service  and  their  families,  who 
were  captured  by  the  Japanese  army  and  navy.  Examining 
these,  the  Japanese  Government  selected  79,367  from  them  and 
treated  them  as  legitimate  prisoners.  Of  course  there  were 
many  prisoners  who  were  released  or  died  at  the  front.  Only 
72,408  Russians  were  sent  across  to  Japan  and  interned  in 
prison  barracks  in  various  provinces.  On  September  5,  1905,. 
peace  was  restored  between  Japan  and  Russia  by  the  conclu- 
sion of  the  Portsmouth  Convention,  Art.  XIII.,  which  pro- 
vided that  "  both  governments  shall  deliver  all  their  prisoners, 
and  that  as  soon  as  possible  in  case  the  Convention  came  into 
force  a  special  committee  would  be  appointed  by  each  govern- 
ment for  that  purpose,  so  that  each  government  can  easily 
deliver  its  prisoners  to  them  or  to  some  representative  commis- 
sioned by  them."  There  were  1777  Japanese  prisoners  who 
were  received  by  the  Japanese  Imperial  special  committee  in 
the  western  frontier  of  Russia,  besides  223  who  were  delivered 
at  Manchuria  and  Nagasaki.  Russian  prisoners  to  the  number 
of  71,802,  excluding  those  escaped,  released,  and  deceased,  were 
delivered,  by  the  order  of  the  Japanese  Minister  of  War  from 
Bureau  of  Information  to  the  Russian  special  committee  or 
their  representatives  at  Yokohama,  Yokkaichi,  Kobe,  and  Naga- 
saki, beginning  from  November  12,  1905,  and  ending  on  Feb- 
ruary 19,  1906. 

1  The  most  part  of  the  material  in  this  chapter  has  been  taken  from  Dr.  Akiyama's 
report  on  the  Russian  prisoners  during  the  Russo-Japanese  war. 

94 


CHAP.  II.,  SECT.  I.]  TREATMENT   OF   PRISONERS.  95 

Eussian  prisoners  of  war  in  Japan  were  numerous,  while 
Japanese  prisoners  in  Kussia  were  only  2000  in  all;  and  it  is- 
with  heartfelt  pride  that  Japan  can  produce  several  proofs  to 
show  that  she  gave  this  great  number  of  Eussian  prisoners 
the  very  best  treatment  in  her  power,  a  treatment  far  better 
than  that  given  by  Eussia  to  the  Japanese  prisoners  in  her 
country.  In  the  summer  of  1905  a  visit  by  the  author  of  this, 
work  to  the  barracks  of  Eussian  prisoners  in  Japan,  a  talk  with 
Admiral  Wiren  and  other  high  officers  as  well  as  the  lowest 
common  soldiers,  revealed  their  unreserved  opinion  relative  to- 
the  treatment  given  them,  which  was  a  universal  satisfaction 
on  this  point.  It,  however,  will  be  convenient  to  readers  to 
give  them  a  few  official  reports  concerning  the  treatment  of 
prisoners  both  in  Eussia  and  in  Japan  so  as  to  enable  them 
to  compare  the  results  of  the  two  countries,  rather  than  to  give 
them  the  results  of  merely  a  personal  observation. 

I.  Personal  Investigation  oy  Mr.  Smith,  Z7.  8,  Vice-Consul 
at  MosJcow. 

In  December,  1904,  65  Japanese  prisoners  of  war,  who 
were  detained  and  accorded  the  treatment  of  officers  at  Med- 
ved,  sent  in  a  petition  to  the  United  States  Embassy,  in  Eussia,, 
asking  to  send  a  representative  from  that  embassy. 

According  to  what  one  of  the  American  Embassy  learned 
at  the  General  Staff  at  Eussia,  the  despatch  of  a  messenger  was 
under  the  control  of  the  General  Staff,  and  that  to  get  a  formal 
permit,  it  was  necessary  to  refer  the  matter  through  the  Gen- 
eral Staff  to  the  Minister  for  Foreign  Affairs,  who  then  should 
get  a  sanction  from  his  Majesty  the  Emperor,  a  visit  to  pris- 
oners during  the  war  being  a  thing  prohibited  by  an  Imperial, 
ordinance. 

The  United  States  Embassy  then  made  a  formal  communi- 
cation to  the  Eussian  Authorities.  As  its  consequence  Mr. 
Smith,  the  Vice-Consul  at  Moskow,  was  sent  out  as  a  messenger 
for  the  visit,  whose  careful  and  circumspect  investigation  is 
embodied  in  his  report.     When  Mr.  Smith  arrived  at  Medved,, 


D6  LAWS   OF  LAND   WARFARE.  [PART   II. 

the    Japanese    prisoners    handed    him    the    following    memo- 
randum : 

MEMORANDUM, 

(1)  We  cannot  understand  why  the  passengers  and  crew  of  the 
steamer  Haginoura-Maru  and  the  schooner  Hakutsa-Maru  are  kept  as 
prisoners  of  war,  since  they  took  no  part  whatever  in  the  war.  We 
also  think  surgeons  should  be  released,  according  to  the  Treaty  of 
Geneva.  It  is  stated  that  the  Japanese  Government  have  released  all 
who  took  no  part  in  the  war,  except  naval  and  military  men. 

(2)  As  to  our  hospital,  we  have  frequently  complained  to  the  Rus- 
sian authorities,  and  at  present  things  have  been  considerably  improved, 
but  our  request  for  Japanese  attendants  or  nurses  and  for  free  medicine 
have  not  yet  been  fulfilled. 

(3)  A.  Regarding  correspondence,  we  all  requested  that  this  be  der 
livered  to  us  as  quickly  as  possible,  but  sometimes  it  takes  two  or 
three  months  in  delivery.  We  do  not  think  that  this  is  necessary,  fot 
other  letters  are  received  in  due  time. 

B.  We  have  forwarded  letters  written  in  Japanese  and  Katakana 
characters,  but  they  could  not  pass  the  Bureau,  and  so  we  asked  that 
they  be  returned  to  us,  and  also  that  the  letters  which  came  from  Japan 
be  delivered  to  us.  . 

C.  It  has  often  happened  that  we  have  not  received  parcels,  although 
they  were  mentioned  as  having  been  sent  in  letters  we  received.  After 
His  Excellency  the  General  visited  us,  a  few  days  after  Christmas,  we 
expected  these  improvements,  but  the  result  seems  to  have  been  quite 
the  contrary,  especially  as  regards  books,  magazines,  etc. 

D.  During  the  last  year  we  were  allowed  to  read  both  Japanese 
and  English  papers,  but  these  have  since  been  prohibited,  as  well  as 
even  Russian  papers. 

E.  There  are  many  mistakes  in  handling  letters  and  parcels,  they 
being  opened  and  then  replaced  sometimes  under  a  different  address. 

(4)  Regarding  interpreters,  we  have  none  here,  in  spite  of  our  fre: 
quent  requests.  In  a  great  country  like  Russia  we  believe  there  are 
many  who  speak  English,  if  not  Japanese,  and  we  cannot  understand 
why  the  Russian  Government  should  be  so  economical  and  hesitating; 
there  is  at  least  one  interpreter  for  every  forty  Russian  prisoners  in 
Japan. 

(5)  The  limits  of  our  promenade  have  been  more  and  more  reduced, 
gradually,  ever  since  we  came  here,  and  at  present  we  only  have  two 
hours  a  day  under  strict  control,  and  it  frequently  happens  that  we 
miss  even  this  chance  by  some  accident  or  other,  the  time  being  so 
limited. 

(6)  A.  At  first  we  were  quite  free  to  do  our  purchasing  in  any  way 
we  saw  fit,  but  now  we  are  allowed  only  one  hour  for  that  purpose  and 
two  persons.  This  makes  it  quite  inconvenient  and  almost  impossible 
to  do  all  the  purchasing  in  that  short  time  of  about  fifty  different  sorts 


CHAP.  II.,  SECT.  I.]         TREATMENT   OF   PRISONERS.  97 

of  daily  provisions — and  on  Saturdays,  Sundays,  and  the  many  other 
holidays  we  are  entirely  prohibited  from  shopping. 

B.  We  have  been  prohibited  from  purchasing  at  some  shops,  and 
not  even  permitted  to  enter  them;  hence  we  suffer  great  inconvenience 
and  also  have  to  pay  higher  prices  for  our  goods.  And  we  are  not 
allowed  the  proper  drinks  for  table  use. 

(7)  There  is  no  chance  or  means  of  communicating  with  Japanese 
officers,  soldiers,  or  sailors  in  prison  in  other  garrisons. 

The  report  of  Mr.  Smith  is  as  follows: 

REPORT  OF  MR.  THOMAS  SMITH'S  VISIT  TO  THE  JAPANESE 
PRISONERS  OF  WAR  AT  MEDVED,  NOVGOROD  GOVERN- 
MENT,   RUSSIA. 

February  11,  1905. 
On  30th  January  I  visited  the  village  of  Medved  in  the  Government 
of   Novgorod,   where  the  Japanese  prisoners   of  war   are   concentrated. 
There  are  69  officers  and  414  privates,  amongst  the  latter  21  Koreans 
and  5  Chinese. 

To  assist  me  in  the  inspection  and  interrogation,  the  following  officers 
had  been  despatched  to  Medved  by  order  of  the  Minister  of  War: 
Lieut.-Col.  of  the  General  Staff,  Prince  Volkonsky; 
The  late   Russian  Vice-Consul  at   Kobe,  F.   I.  Vasilieff,   at  present 
attached  to  the  General  Staff; 

Col.  A.  U.  Stankevich,  Commander  of  the  199th  Siberian  Infantry 
Regt.,  who  has  charge  of  the  prisoners. 

I  commenced  my  inspection  with  the  lower  ranks  of  the  prisoners, 
composed  of  4  squads,  who  are  domiciled  in  platoons  in  beautiful  brick 
barracks,  well  lighted,  dry  and  high  (about  65  feet),  and  well  venti- 
lated. Every  soldier  has  been  furnished  by  the  government  with  an 
iron  bedstead,  straw  mattress,  pillow,  blanket,  two  towels,  pillow  cases, 
sheets,  and  undergarments.  By  orders  of  the  General  Staff  to  the  Dis- 
trict Commissariat,  the  prisoners  of  war  will  be  furnished  with  a  new 
equipment  of  clothing  in  the  near  future. 

All  the  prisoners  look  healthy  and  strong  and  they  are  in  the  best 
of  spirits.  I  tried  the  food  given  them  and  found  it  very  good  and 
tasty.  The  dinner  consisted,  on  that  day,  of  rice  soup,  with  vegetables, 
and  beef  arid  buckwheat  gruel.  According  to  the  weekly  distribution 
of  food,  which  I  herewith  enclose,  the  menus  are  made  up  as  follows: 

(a)  Dinner:  Barley  soup  with  vegetables  and  beef,  buckwheat  gruel. 
Supper:  Manna  gruel. 

(b)  Dinner:    Vermicelli  soup  with  vegetables  and  beef,  buckwheat 

gruel. 
Supper:   Millet  gruel. 

(c)  Dinner:    Rice  soup  with  vegetables  and  beef,  buckwheat  gruel. 
Supper:  Manna  gruel. 


98  LAWS   OF  LAND   WARFARE.  [PART   II. 

Generally  black  bread  is  furnished,  but  by  order  of  the  Minister  of 
War  this  has  been  changed  to  coarse  white  bread.  Each  man  gets 
3  lbs.  of  bread  per  day,  but  as  the  Japanese  do  not  eat  so  much  bread, 
they  asked  to  be  given  only  2£  lbs.  per  day,  and  the  cost  of  the  remain- 
ing £  lb.  to  be  contributed  towards  improvement  of  the  cooking.  Tea 
and  sugar  are  furnished  twice  a  day,  the  Russian  soldiers  receiving 
pressed  tea  in  the  form  of  cakes,  while  the  Japanese,  who  do  not  like 
this  kind  of  tea,  are  getting  the  ordinary  kind.  As  hot  water  is  fur- 
nished all  day  tea  can  be  prepared  at  any  time  of  day,  as  each  man 
wishes. 

Upon  close  inquiry  I  found  that  all  the  common  soldiers  among  the 
prisoners  are  satisfied,  but  would  like  to  have  rice  soup  and  macaroni 
instead  of  the  manna.  The  Commander  told  me  that  under  the  circum- 
stances he  cannot  comply  with  this  request,  on  account  of  the  high  price 
of  rice  and  macaroni.  However,  the  Commander  has  communicated  with 
the  General  Staff  about  this,  and  in  the  near  future  the  prisoners  will 
receive  macaroni  instead  of  manna. 

The  prisoners  do  not  have  to  do  any  burdensome  work,  except  that 
they  clean  the  barracks  and  courtyards  surrounding  the  same,  carry 
water,  wood,  and  fire  the  stoves,  etc.  The  prisoners  have  selected  cer- 
tain of  their  number  to  do  the  cooking,  and  these  are  assisted  by  Rus- 
sian soldiers.  If  they  did  not  wish  this,  the  Russian  soldiers  would  be 
recalled. 

The  prisoners  get  plenty  of  exercise  in  their  daily  walks,  coasting 
on  icy  hills,  and  gymnastic  exercises  in  an  excellent  riding  school,  500 
ft.  long  and  180  ft.  wide. 

They  are  engaged  in  manufacturing  various  toys,  such  as  ships,  ani- 
mals, birds,  etc.  Their  work  is  very  neat  and  skilful.  The  commander 
wishes  them  to  turn  out  as  much  as  possible  of  this  work,  as  50%  of 
the  proceeds  goes  to  the  workman  and  50%  to  the  fund  for  improving 
the  food.  The  privates  go  twice  a  month  to  the  regiment  bath-house, 
but  they  are  not  satisfied  with  this,  and  wish  to  bathe  four  times  a 
month.  As  each  time  involves  a  cost  of  copecks  30,  the  commander  has 
applied  to  the  authorities  for  permission. 

It  must  be  noted  that  the  Russian  soldiers  bathe  only  twice  a  month. 

I  also  called  on  Major  Togo,  who  occupies  a  nice  large  room,  part 
of  which  is  partitioned  off  for  a  bedroom,  with  an  adjoining  kitchen. 
He  has  a  Japanese  soldier  at  his  disposal.  He  is  allowed  to. walk  sepa- 
rately from  the  rest  and  is  not  so  restricted  in  the  space  allotted.  He 
is  accompanied  by  his  wife,  who,  at  her  own  wish,  went  with  Major 
Togo  and  is  treated  like  a  prisoner  of  war.  Mrs.  Togo  has  asked  for 
permission  to  have  a  Russian  maidservant.  She  had  a  Japanese  maid, 
but  the  latter  left  not  long  ago,  and  the  commander  has  placed  her 
in  charge  of  the  Ministry  of  Interior.  It  would  be  desirable  to  assist 
this  woman  and  send  her  back  to  Japan. 

Major  Togo  told  me  that  he  was  satisfied  with  the  treatment  he 
received,  but  would  like  to  have  some  books,  for  instance  Schiller's 
"  William    Tell,"    a    Russian-Japanese   dictionary,   Russian   newspapers, 


CHAP.  II.,  SECT.  I.]         TREATMENT  OF   PRISONERS.  99 

and  the  Japanese  Times.  He  receives  rbls.  75  per  month  from  the 
Russian  Government. 

I  then  visited  the  68  officers.  They  are  living  in  a  large  two-story 
brick  house.  The  rooms  are  all  large,  well  lighted,  dry,  and  well  ven- 
tilated. It  was  left  to  them  to  select  their  roommates.  Each  officer 
has  an  iron  bedstead,  with  a  good  mattress,  one  chair,  and  one  small 
table  for  two  officers.  They  are  not  satisfied  with  this,  and  wish  to 
have  one  large  table  in  each  room.  Large  tables  may  be  forwarded 
later  on.  There  is  a  closet  in  each  room.  To  these  68  officers  are 
attached  20  Japanese  soldiers.  They  procure  their  own  provisions,  the 
same  being  purchased  by  four  people  selected  for  the  purpose.  Formerly 
they  procured  their  dinners  from  the  officers'  club,  but  as  they  did  not 
like  the  Russian  dishes,  they  were  allowed  to  procure  their  own  pro- 
visions. They  paid  21  rbls.  per  month  at  the  officers'  club,  and  the  ex- 
pense is  the  same  under  the  new  arrangement.  They  are  not  satisfied, 
however,  to  be  forced  to  purchase  at  certain  stores. 

The  6fficers  receive  rbls.  50  per  month  from  the  Russian  Govern- 
ment, the  same  as  the  Russian  officers,  only  that  the  Russian  officers 
have  to  pay  for  their  lodging  and  heating.  Officers  of  the  staff  receive 
rbls.  75  per  month,  the  same  as  the  Russian  staff  officers  do.  The 
officers  are  permitted  to  go  out  daily  for  two  hours  in  a  district  out- 
lined by  the  commander,  and  accompanied  by  one  Russian  officer. 
Lately  this  district  has  been  reduced  on  account  of  some  of  the  officers 
having  gone  outside  of  the  limits,  principally  the  Englishmen,  and  also 
because  the  Japanese  Government  curtailed  the  liberty  of  the  Russian 
prisoners  of  war  in  Japan. 

The  dissatisfaction  expressed  by  some  of  the  officers  consists  in  the 
following : 

(1)  During  the  last  month  they  have  not  been  allowed  to  receive 
any  newspapers  and  journals.  The  commander  explains  that  the 
Japanese  Government  has  acted  likewise  towards  the  Russian  prisoners 
of  war. 

(2)  They  would  like  to  have  certain  medicines,  but  cannot  get  them 
at  the  drug  store  of  the  regiment.  The  commander  states  that  at  the 
drug  store  only  such  medicines  as  are  prescribed  by  law  are  kept,  and 
that  the  officers  could  procure  the  medicines  desired  at  private  drug 
stores  and  at  their  own  expense,  just  as  the  Russian  officers  do. 

(3)  They  would  like  to  receive  their  letters  earlier,  as  now  it  takes 
three  months  to  receive  a  letter.  The  commander  promised  to  see 
to  this. 

(4)  They  want  an  interpreter  knowing  English,  Japanese,  and  Rus- 
sian attached  to  them.  This  request  has  been  sanctioned,  but  there  are 
difficulties  in  finding  such  an  interpreter.  For  the  soldiers  they  wish 
an  interpreter  speaking  Japanese  and  Russian. 

(5)  Formerly  the  officers  (99  in  number)  were  allowed  to  procure 
70  bottles  of  beer  and  several  bottles  of  whisky,  but  now  they  are 
only  allowed  to  buy  30  bottles  per  day.  The  commander  explains  that 
the  officers  abused  the  order  and  incurred  debts.     Upon  my  request  he 


100  LAWS   OF  LAND   WARFARE.  [PART   II. 

permitted  them  to  procure  40  bottles  of  beer  per  day  and  each  officer 
to  have  one  glass  of  whisky  per  day. 

(6)  They  are  allowed  to  go  to  the  bath-house  twice  a  month,  but 
would  like  to  go  four  times  a  month.  As  a  matter  of  fact  the  officers 
should  not  be  allowed  in  the  Government  bath-house,  but  the  commander 
was  kind  enough  to  sanction  it.  He  permits  them  to  go  to  the  bath 
oftener,  but  to  a  private  bath,  where  they  have  to  pay  20  copecks.  All 
the  officers  are  satisfied  with  this  proposal. 

(7)  The  officers  Miyazawa  and  Tatibana,  who  were  made  prisoners 
on  board  of  the  Sado  Maru  and  Haginoura  Maru,  declare  that  they 
should  not  have  been  made  prisoners,  as  they  are  physicians.  All  the 
officers  confirm  their  statement.  The  Japanese  Government  does  not 
make  Russian  doctors  prisoners  of  war,  but  sets  them  free  immediately. 
The  Russian  officers  told  me  that  there  should  be  no  difficulty  in  lib- 
erating these  officers  (doctors). 

Upon  my  question  as  to  whether  they  were  not  in  want  of  clothing, 
underwear,  and  bed  linen,  they  told  me  that  they  were  not.  The  Eng- 
lishmen, however,  wished  to  have  some  American  tobacco,  say  4  lbs., 
and  to  get  books  and  newspapers  regularly. 

The  Commander  of  the  Regiment,  Adam  Zurjevich  Stankevich,  im- 
pressed me  as  a  very  congenial  and  good-hearted  man,  who  takes  an 
interest  in  the  prisoners  of  war.  There  are  a  number  of  large  brick 
barracks  at  the  village  of  Medved.  They  all  contain  large  and  light 
rooms  and  spacious  halls,  and  are  all  being  renovated  at  present  for 
other  Japanese  prisoners  of  war. 

In  the  building  that  Major  Togo  lives  in,  there  are  several  large, 
good  rooms  with  a  kitchen,  which  are  destined  for  officers,  and  if  it 
were  possible  to  place  some  of  the  officers  in  these  rooms  this  would  not 
mean  less  comfort  but  an  improvement,  as  at  present  the  soldiers  and 
sailors  are  occupying  better  lighted  and  ventilated  rooms  than  the  offi- 
cers. The  commander  thinks  that  Your  Excellency  could  easily  arrange 
this,  in  your  own  name,  with  the  Minister  for  Foreign  Affairs. 

The  Englishmen  have  a  room  by  themselves,  four  men  in  a  room, 
and  they  are  comfortably  cared  for  as  far  as  light  and  air  is  concerned, 
as  well  as  food. 

{Annex.    Memorandum  of  Mr.  Thomas  Smith.) 

I  beg  to  call  your  attention  to  the  following  request  that  was  made 
of  me  by  the  prisoners.  It  seems  that  before  December  they  had  great 
freedom  of  movement  and  were  permitted  to  go  all  over  the  village  of 
Medved,  but  at  present  the  space  that  is  allotted  to  the  officers  for 
walking  is  very  small,  and  they  have  also  been  deprived  of  a  skating 
pond.  This  latter  I  found  to  be  one  of  the  most  important  complaints, 
and  if  they  could  have  the  privilege  of  skating  on  the  small  pond  it 
would  be  very  important  for  their  health. 

Respecting  newspapers  and  books,  they  have  been  deprived  of  these 
for  the  last  three  or  four  weeks.    It  is  very  important  for  them  to  get 


CHAP.  II.,  SECT.  I J         TREATMENT  OF  PRISONERS.  101 

these  regularly,  as  it  keeps  their  minds  engaged.  They  wish  to  have 
Russian  newspapers  as  well.  I  visited  the  Bureau  in  St.  Petersburg, 
No.  5  Panteleimonovskaya,  where  all  letters,  newspapers,  books,  and 
packages  are  censored,  and  obtained  the  promise  of  the  Bureau  to  for- 
ward at  once  all  packages  of  printed  matter  and  letters  that  they  had 
on  hand.  Amongst  these  was  a  very  large  quantity  of  English  news- 
papers and  some  magazines.  Mr.  Vasilieff,  late  Russian  Vice-Consul  at 
Kobe,  now  attached  to  the  General  Staff  at  the  War  Department,  is 
the  censor  at  the  Bureau,  and  everything  destined  for  the  Japanese 
prisoners  of  war,  without  exception,  passes  through  his  hands.  In  this 
connection  I  hope  that  the  commander  will  carry  out  his  promise  of 
letting  the  soldiers  and  officers  have  four  baths  instead  of  two  a  month. 

I  asked  the  commander  whether,  if  he  had  a  small  fund  in  hand, 
he  would  agree  to  use  it,  when  it  was  necessary,  to  improve  the  con- 
dition of  the  soldiers'  food  and  pay  for  medicines  that  the  officers  should 
require  which  are  not  in  the  hospital  list,  and  which  I  found  would  be 
a  very  small  amount  per  month.  Of  course,  with  the  officers  neither  of 
these  things  were  absolutely  necessary,  because  they  buy  their  own 
food.    With  them  it  would  only  be  the  high-class  medicine. 

The  soldiers  did  not  ask  me  for  this,  and  it  is  merely  my  suggestion, 
so  that  these  trifling  matters  might  not  give  rise  to  any  complaints. 

The  hospital  is  in  a  very  good  condition  and  the  prisoners  of  war 
are  treated  exactly  as  the  Russians  are.  The  hospital  in  Medved  is  of 
the  ambulatory  type,  and  when  there  is  any  serious  indisposition  of  the 
officers  they  are  sent  to  Novgorod. 

If  it  is  desired  to  send  the  prisoners  of  war  any  tobacco,  tea,  coffee, 
or  anything  whatever,  I  have  spoken  about  the  matter  at  the  Bureau 
to-day,  and  it  was  suggested  that  you  send  everything  to  the  Bureau 
here,  addressed  to  the  parties  the  articles  are  intended  for.  The 
Bureau  have  promised  to  forward  them  the  same  day  free  of  charge. 
They  say  this  will  simplify  matters,  and  that  if  you  send  articles  direct 
to  the  commander  in  charge  of  the  prisoners  he  might  get  into  trouble, 
while  by  sending  through  the  Bureau  the  things  are  perfectly  safe  and 
reach  their  destination  quicker. 

Respecting  the  money  that  you  would  like  to  deposit  with  the  com- 
mander in  charge  of  the  prisoners  of  war,  this  can  be  done  by  address- 
ing the  commander. 

At  the  Bureau  we  discussed  the  sale  of  the  articles  made  by  the 
prisoners,  and  the  opinion  was  that  it  would  be  difficult  to  dispose  of 
them  here  in  the  city,  because  nobody  cares  to  undertake  it,  although 
orders  are  being  received  from  society  people  for  different  articles. 

I  mention  this  because  it  would  greatly  improve  the  condition  of 
the  prisoners  and  give  them  a  chance  to  make  money  if  their  articles 
could  be  disposed  of. 

This,  of  course,  refers  only  to  the  privates. 

I  was  told,  when  at  Medved,  that  the  Minister  of  War  had  arranged 
with  the  commissary  to  send  all  the  prisoners  of  war  special  linen 
clothing  and  sheep-skin   coats  and  boots,  but  up  to  the  present  time 


102  LAWS  OF  LAND  WARFARE.  [PART  II. 

these  things  have  not  arrived  at  Medved,  although  Prince  Volkonsky, 
the  Adjutant  who  was  sent  from  the  General  Staff  at  St.  Petersburg, 
said  that  the  Commissioner  had  already  made  all  the  arrangements 
and  that  they  will  arrive  in  a  few  days  at  Medved.  I  mention  this 
in  case  you  should  have  an  opportunity  of  speaking  about  it.  The 
clothing  and  linen  they  have  now  are  in  very  'good  condition — it  is 
the  clothing  they  arrived  in. 

More  rooms  are  being  prepared  in  the  barracks  at  Medved  for  pris- 
oners of  war  that  are  to  arrive,  and  new  apartments  are  being  prepared 
for  officers  also.  Medved  seems  to  be  the  principal  place  in  Russia  for 
this  purpose,  as  there  are  so  many  barracks  there  suitable  for  keeping 
prisoners. 

The  Japanese  prisoners  want  to  know  why  they  were  not  kept  in  a 
warmer  climate,  such  as  the  south  of  Russia,  for  they  say  the  Russian 
prisoners  of  war  are  kept  "in  a  warm  climate  in  Japan. 

These  are  details  of  the  report  made  by  Mr.  Smith  who 
had  twice  visited  the  prison  barracks  at  Medved  during  the 
war. 

After  the  war  the  author  met  several  Japanese  who  had  been 
prisoners  at  Medved;  they  still  insisted  that  the  treatment  of 
the  Russian  authorities  was  not  all  in  accordance  with  what 
they  promised  Mr.  Smith.  Mr.  George  Anderson,  the  Cap- 
tain of  the  Sado  Maru, .  and  Mr.  William  Kerr,  the  Chief 
Engineer  of  the  same  vessel,  said  that  the  treatment  of  pris- 
oners by  the  Eussian  authorities  was  not  very  bad,  still  it  is 
true  that  the  proper  authorities  were  not  prompt  in  carrying 
out  their  promises. 

Compare  in  the  following  the  difference  in  treatment  of 
Eussian  prisoners  by  the  Japanese  authorities: 

II.     Treatment  of  the  Russian  Prisoners  in  Japan. 

I.  According  to  verbal  information  of  a  member  of  the  United  States 
Embassy  at  St.  Petersburg  •  obtained  at  the  Military  Staff  Office  of  Rus- 
sia, in  December  last,  all  visits  to  prisoners  of  war  are  prohibited  in 
Russia  by  an  Imperial  Edict,  and  therefore,  for  giving  permission  to 
visit  Japanese  prisoners  of  war,  the  Military  Staff  Office  has  to  apply 
to  the  Emperor  himself,  through  the  Minister  of  War.  Such  being  the 
case,  a  French  priest  recently  applied  for  permission  to  see  those  pris- 
oners, but  met  with  a  flat  refusal.  Whereas,  in  Japan,  there  being  pro- 
visions in  Art.  IX.  of  the  Regulations  for  the  Treatment  of  Prisoners 
to  the  effect  that  no  person  shall  visit  prisoners'  quarters  unless  per- 


CHAP.  II. ,  SECT.  I.]        TREATMENT  OF   PRISONERS.  103 

mitted  by  the  Commander  of  the  Garrison,  and  that  to  a  foreigner  who 
desires  to  visit  prisoners'  quarters  the  Minister  of  War  will  grant  the 
necessary  permission,  it  is  made  a  rule  to  permit  all  persons  who  may 
desire  to  see  the  Russian  prisoners,  be  they  Japanese  or  foreigners,  to 
gain  access  to  them.  Not  only  the  members  of  the  foreign  legations 
and  consulates  in  Japan,  but  other  foreigners  who  have  applied  for 
permission  to  pay  a  visit  to  prisoners'  quarters  have  never  been  refused. 
It  may  be  observed  in  this  connection  that  M.  de  Fossarieu,  the  French 
Consul,  has  been  making  such  visits,  once  or  twice  every  month, 
attended  by  his  servants  and  others.  The  commander  of  the  garrison 
in  the  places  where  prisoners'  quarters  are  established,  has  also  accorded 
free  access  to  the  prisoners  to  the  representatives  of  the  various  local 
bodies,  as  well  as  to  individuals.  As  to  religious  services,  the  Japanese 
authorities  pay  the  greatest  possible  attention,  many  priests,  who  are 
pupils  of  Bishop  Nicolai,  being  granted  free  access  to  the  prisoners; 
and  for  the  benefit  of  the  Roman  Catholic  prisoners,  l'Abbe  Perrin,  a 
French  priest,  is  accorded  the  liberty  of  freely  performing  the  various 
rites  and  services. 

II.  In  Russia,  Japanese  officers  and  others  in  captivity  are  not 
allowed  to  purchase  medicines,  while  the  medicines  kept  in  store  at  the 
medical  laboratory  of  the  garrisons  having  custody  of  the  prisoners 
are  very  limited  in  kind  and  quantity.  But  in  Japan,  to  give  an  in- 
stance, the  sick  and  wounded  among  the  Russian  prisoners  at  Matsu- 
yama,  irrespective  of  their  being  officers  or  not,  are  taken  into  the 
Military  Hospital  there,  towards  the  equipment  of  which  the  authorities 
concerned  are  doing  their  best,  and  in  which  Military  Surgeon-General 
Dr.  Kikuchi,  skilled  in  the  medical  art,  and  many  other  military  sur- 
geons, as  well  as  surgeons  and  nurses  of  the  Red  Cross  are  busily 
engaged  in  the  treatment  of  the  prisoners.  In  that  hospital,  and  in  the 
medical  establishments  attached  to  prisoners'  quarters  in  other  places, 
as  well  as  the  reserve  military  hospitals  where  Russian  prisoners  are 
received  for  treatment,  all  necessary  medicines  are  given  them  in  suffi- 
cient quantities,  so  that  they  do  not  stand  in  any  need  of  purchasing 
medicines  from  private  dispensaries.  In  the  case  of  captive  officers, 
who  are  allowed  to  live  in  private  houses  on  parole,  they  are  received, 
when  they  become  ill,  into  medical  establishments  attached  to  pris- 
oners' quarters  or  reserve  military  hospitals,  and  are  supplied  with  all 
medicines  and  other  things  necessary  for  their  cure. 

III.  The  Japanese  prisoners  in  Russia  .are,  it  is  said,  allowed  to 
bathe  only  twice  in  a  month.  In  Japan,  on  the  contrary,  the  greatest 
care  is  taken  of  the  health  of  the  Russian  prisoners,  and  a  paper,  giving 
full  particulars  relative  to  the  preservation  of  health,  is  given  to  each 
of  them.  In  each  place  where  they  are  quartered  they  are  allowed  to 
bathe  at  least  once  a  week,  at  no  cost  to  themselves. 

IV.  The  Japanese  prisoners  in  Russia  are  quartered  in  a  cold  place 
like  Medved,  and  recently  the  space  allowed  them  for  free  walk  has 
been  considerably  diminished.  Even  the  officers  are  allowed  only  two 
hours'  walking  per  day,  and  that  in  a  very  limited  place,  under  strict 


104  LAWS   OF   LAND   WARFARE.  [PART   II. 

surveillance.  Moreover,  the  prisoners  are  prohibited  from  enjoying  the 
pastime  of  skating  on  the  ice,  which  sport  would  be  very  healthful 
for  them. 

In  Japan  the  number  of  Russian  prisoners  has  been  constantly  on 
the  increase  since  the  first  batch  of  them,  taken  in  the  battle  of  Kiulien- 
cheng  on  the  1st  May  last,  was  brought  home.  But  they  were  all, 
including  those  taken  at  the  fall  of  Port  Arthur,  quartered  in  Matsu- 
yama,  Marugame,  Himeji,  Fukuchiyama,  Nagoya,  Shizuoka,  etc.,  all 
of  which  places  boast  of  the  best  climatic  conditions  in  Japan;  and.  it 
was  only  when  the  numerous  prisoners  taken  in  the  battle  near  Mukden 
arrived  that  the  authorities  were  compelled  to  establish  a  number  of 
prisoners'  quarters  in  the  neighbourhood  of  Tokyo  and  in  places  farther 
north.  , 

The  prisoners  lodged  in  Matsuyama,  Marugame,  etc.,  are  allowed  to 
take  turns  in  the  streets  and  to  visit  the  hot  springs  in  the  neigh- 
bourhood. 

The  time  allowed  them  for  promenading  has  never  been  limited  to 
a  small  number  of  hours. 

In  July  last  a  Cossack  lieutenant  and  six  others  quartered  at 
Matsuyama  attempted  to  escape  as  many  as  four  times.  In  August 
and  September,  too,  six  prisoners  at  Matsuyama  and  Marugame  made 
three  such  attempts.  Again,  on  the  5th  of  January  last,  six  prisoners, 
including  officers,  conspired  to  effect  their  flight  at  Matsuyama.  Such 
attempts  on  the  part  of  the  prisoners  have  prevented  the  authorities 
for  a  long  time  from  according  the  captive  officers  in  general  greater 
freedom  in  walking.  But  because  such  offences  have  since  become  less 
and  less  frequent,  the  Imperial  Government  established,  on  the  18th 
of  March  last,  the  Regulations  for  the  Prisoners'  Free  Walking,  and 
Residence  in  Private  Houses.  By  these  regulations  such  officers  and 
officials  of  corresponding  rank  as  may  desire  under  special  circumstances 
to  live  with  their  wives  and  children  were  given  permission  to  take 
private  houses  and  to  lead  a  free  life  as  regards  walking  and  in  other 
respects.  At  the  same  time,  the  officers  and  officials  of  corresponding 
rank  quartered  in  the  establishments  prepared  by  the  Government  for 
them  were  granted,  on  their  taking  oath,  the  liberty  of  taking  walks 
abroad  during  the  daytime. 

V.  The  Japanese  prisoners  at  Medved,  69  officers  and  414  non- 
combatants,  are  allowed  to  purchase  only  40  bottles  of  beer  for  all  and 
a  glassful  of  whisky  for  each  officer  per  day.  The  officers  have  to  pay 
high  prices  for  their  daily  necessaries,  as  they  are  permitted  to  make 
purchases  only  at  certain  stores.  Moreover,  no  more  than  two  persons 
are  allowed  to  make  daily  purchases,  and  that  within  the  short  space 
of  an  hour.  Hence,  a  serious  inconvenience  is  felt  by  the  prisoners  in 
making  their  purchases. 

In  Japan  a  canteen  is  attached  to  all  the  prisoners'  quarters,  where 
the  prisoners  can  buy  anything  they  want,  for  reasonable  prices,  at 
any  hour  during  daytime.  Those  canteens  are  not  allowed  to  charge 
more  than  the  ordinary  market  prices  and  are  under  strict  inspection 


CHAP.  II.,  SECT.  I.]        TREATMENT  OF   PRISONERS.  105 

of  the  military  authorities.  At  Shizuoka,  Nagoya,  Matsuyama,  and 
other  places  where  officers  are  quartered,  various  kinds  of  alcoholic 
beverages  are  for  sale,  so  that  the  officers  in  those  places  can  freely 
buy  their  table  drinks.  They  are  also  allowed,  while  walking  in  the 
streets,  to  enter  into  any  shop  and  buy  almost  anything  through  the 
assistance  of  their  interpreters.  Thus,  not  only  the  officers,  but  the 
non-commissioned  officers  and  men  are  free  to  purchase  their  daily  neces- 
saries, and  in  doing  so  they  have  to  pay  only  reasonable  prices.  As  the 
matter  stands,  not  a  few  officers  have  bought  such  curios  as  Yoroi 
(armour)  and  Katana  (swords),  which  they  intrusted  to  the  custody  of 
the  authorities,  stating  that  they  would  take  them  home  upon  their 
release. 

VI.  The  Russian  authorities  sometimes  take  two  or  three  months  in 
delivering  to  Japanese  prisoners  the  letters  addressed  to  them.  Parcels, 
as  regards  the  forwarding  of  which  intimation  is  made  in  the  letters, 
not  infrequently  fail  to  reach  their  destinations,  especially  in  the  case 
of  books  and  magazines.  Moreover,  parcels  and  letters  are  often  deliv- 
ered to  the  wrong  persons  through  errors  made  on  the  part  of  the 
Russian  authorities  in  opening  and  resealing  them.  Nor  are  the  pris- 
oners at  Medved  allowed  to  have  any  communication  with  their  brother- 
prisoners  in  other  places  in  Russia. 

In  Japan  the  Russian  prisoners  in  the  different  places  are  permitted 
to  communicate  with  one  another,  no  restriction  being  put  on  their 
exchange  of  either  telegrams  or  letters.  Their  letters,  which  they  are 
left  free  to  write  either  in  Russian  or  in  English,  French,  German, 
Polish,  or  other  languages,  are  examined  by  a  large  staff  of  censors,  and 
speedily  forwarded.  The  letters  addressed  to  the  prisoners  are  examined 
in  the  same  way,  only  such  letters  as  are  quite  illegible  being  sent 
to  the  Prisoners'  Intelligence  Bureau  for  examination.  Even  in  the 
latter  case  not  many  days  have  ever  been  wasted  in  their  transmission. 
It  was  after  June  that  the  number  of  Russian  prisoners  in  Japan  in- 
creased suddenly,  and  yet  the  letters  and  parcels  they  forwarded  during 
ten  months,  ending  the  31st  March  last,  amounted  to  51,437  letters  and 
416  parcels,  while  those  received  during  the  same  period  amounted  to 
20,949  letters  and  991  parcels.  All  such  letters  and  parcels  are  examined 
by  the  Japanese  authorities  with  a  great  deal  of  care,  so  that  they  have 
never  failed,  as  in  Russia,  to  reach  the  persons  to  whom  they  are  ad- 
dressed. In  strict  accordance  with  The  Hague  Convention,  this  postal 
matter  is  exempted  from  postal  charges,  and  all  articles  sent  for  the 
relief  of  the  prisoners  are  made  free  from  customs  and  all  other  dues, 
as  well  as  from  freight  on  all  the  government  railways.  Moreover,  the 
general  public  entertains  such  warm  sympathy  towards  these  prisoners 
that  the  private  railway  companies,  such  as  the  Sanyo,  Iyo,  Sanuki, 
Hankaku,  Kyushiu,  and  Nippon,  whose  lines  extend  to  localities  where 
the  various  prisoners'  quarters  are  established,  are  also  carrying  free 
all  articles  addressed  to  prisoners. 

VII.  The  Japanese  prisoners  in  Russia,  it  is  said,  are  denied  all 
books  and  newspapers.    But  in  Japan  the  Russian  prisoners  have  never 


106  LAWS   OF   LAND   WARFARE.  [PART   II. 

once  since  the  outbreak  of  war  been  prohibited  from  reading  books, 
newspapers,  or  magazines.  They  are  at  liberty  to  purchase  Japanese 
and  Russian  books,  or  any  kind  of  foreign  books.  Books  and  magazines 
that  are  given  to  them  as  presents  are  at  once  delivered  to  them. 
Moreover,  they  are  allowed  to  take  not  only  Japanese  newspapers  and 
magazines,  but  those  of  Europe  and  America.  A  limit,  however,  has  been 
made  as  to  what  newspapers  can  be  purchased  by  the  prisoners,  because, 
and  only  because,  the  authorities  find  it  impossible  to  examine  all  these 
worldwide  publications,  their  time  being  so  much  taken  up  with  the 
inspection  of  letters  to  and  from  the  Russians.  But  this  limitation  does 
not  apply  to  the  newspapers  printed  in  the  Japanese  vernacular.  The 
following  are  the  English  and  other  papers  on  the  unprohibited  list: 

English  papers  published  in  Japan — 
1.     The  Japan  Mail. 


2. 

3. 
4. 

The 
The 
The 

Japan  Times. 
Daily  Advertiser, 
Japan  Gazette. 

English 

papers— 
1. 
2. 
3. 

The 
The 
The 

London  Times. 

Standard. 

Daily  Telegraph. 

French 

papers — 
1. 
2. 
3. 

Le   Temps. 
Le  Radical. 
La  Lanterne. 

American  papers — 

1.  The  Sun. 

2.  The  Tribune. 

3.  The  Washington  Post. 

German 

and  Austrian  papers — 

1.  Norddeutsche  Allgemeine  Zeitung. 

2.  Berliner  Lokal-Anzeiger. 

3.  Neue  Freie  Presse. 

In  addition  to  this,  all  foreign  newspapers,  even  Russian,  which  are 
sent  to  the  prisoners  from  abroad  are  delivered  to  their  addressees. 
What  is  said  above  respecting  newspapers  holds  good  in  the  case  of 
Japanese  and  foreign  magazines.  Between  July  and  March,  1905,  the 
prisoners  forwarded  printed  matter  416  times,  and  in  the  same  period 
received  it  2171  times. 

VIII.  The  Japanese  prisoners  at  Medved  are  said  to  have  asked 
in  vain  to  have  interpreters  supplied  them.  On  the  contrary,  the  Japa- 
nese  authorities    did    their   best   to    have   interpreters   connected    with 


CHAP.  II.,  SECT.  II.]      FREE   OUTDOOR  EXERCISE.  107 

Russian  prisoners,  even  at  the  front.  At  home,  Russian  interpreters  are 
posted  at  the  various  prisoners'  quarters,  their  total  number  amounting 
at  present  to  no  less  than  181.  At  Nagoya  the  authorities  have  ap- 
pointed a  French  interpreter,  since  among  the  Russian  officers  in  that 
city  there  are  some  who  speak  French.  Besides,  the  official  staff  of  the 
prisoners'  quarters  are  selected  from  among  military  officers  who  can 
speak  either  English,  French,  or  German,  so  that  neither  Russian  officers 
nor  men  in  these  establishments  can  possibly  feel  any  inconvenience  in 
this  respect. 

Sect.  II.     Parole  for  Free  Outdoor  Exercise. 

In  order  to  enable  the  captured  Eussian  officers  to  enjoy 
the  pleasure  of  free  outdoor  exercise,  the  Japanese  Government 
drew  up  a  rule  in  the  Russian  language  and  gave  it  to  them. 
But  there  was  much  complaint  among  them  about  the  word 
"  Presharg,"  meaning  oath,  that  was  used  in  the  rule.  The 
reason  of  their  complaint  was  that  the  word  "  Presharg  "  meant 
taking  an  oath  before  God;  and  there  were  only  three  occasions 
in  their  life  time  when  they  were  allowed  to  take  an  oath, 
namely,  before  a  judge  in  a  law  court,  at  the  time  of  being 
enlisted  as  a  soldier,  and  at  the  time  of  the  present  Emperor's 
coronation.  They  were  not  authorised  to  take  an  oath  before 
God  on  ordinary  occasions;  and  they  would  not  do  it,  as,  other- 
wise, they  should  be  religiously  punished  with  excommunica- 
tion. They  further  suggested  that  "  Presharg "  was  not  the 
only  word  meaning  oath,  but  that  there  were  other  words  with 
a  similar  meaning,  which  would  be  used  in  ordinary  cases. 
The  director  of  the  prison  barracks  at  Matsuyama,  who  found 
some  reason  in  the  complaint,  sent  an  application  to  the 
War  Department  to  get  the  wording  corrected;  and  the 
department,  accepting  his  application,  altered  the  wording 
to  "  Obyazkosina-chehstnse-slowo,"  which  has  a  similar  mean- 
ing of  an  oath.  But  there  was  another  trouble.  Although 
the  wording  of  the  oath  was  corrected  to  their  satisfac- 
tion, yet  they  offered  another  complaint  against  the  sentence, 
"  Prisoners  shall  not  contemplate  escape,"  used  in  the  wording 
of  the  parole.  They  insisted  that  it  was  natural  for  prisoners 
to  wish  to  escape.     To  stop  it  by  a  rule  was  to  restrict  their 


108 


LAWS   OF  LAND   WARFARE. 


[PART   II. 


will.  If  the  establishment  of  such  a  rule  was  for  the  purpose 
oi  facilitating  their  superintendence,  a  simple  limitation  of  time 
for  their  going  out  would  answer  the  same  purpose,  and  there 
would  not  be  any  necessity  whatever  to  resort  to  the  restriction 
of  their  free  will;  hence  their  unwillingness  to  accept  the  rule 
of  parole.  Japan  decided  not  to  give  ear  to  any  further  pro- 
test, but  to  carry  out  the  rule  in  the  present  form,  it  having 
been  the  belief  that  the  objection  was  nothing  but  an  example 
of  the  habit  common  among  the  Eussians  of  catching  at  any 
little  advantage  by  offering  strained  reasons  on  every  important 
or  trivial  occasion,  and  that  it  had  already  been  an  act  of  deep 
grace  towards  them  to  alter  the  wording  of  parole.  On  the  20th 
of  April,  1905,  over  300  officer  prisoners  were  assembled  in  the 
lecture  hall  of  the  Matsuyama  Middle  School,  and  the  director 
of  the  prison  barracks  delivered  a  speech  to  them,  explaining 
the  rule  of  free  outdoor  exercise  as  well  as  the  liberality  of  the 
Japanese  Government,  and  told  them  to  take  an  oath  according 
to  the  rule  if  they  wanted  to  enjoy  this  privilege.  At  this  time 
about  one-third  of  the  whole  number  of  Russian  officers  signed 
the  oath,  and  gradually  others  followed  their  example  until 
about  two-thirds  of  the  whole  number  had  signed.  Many, 
however,  refused  to  take  the  oath  to  the  very  last,  among  them 
being  Captain  Salnavski. 

TABLE    SHOWING    THE    NUMBER    OF    RUSSIAN   PRISONERS 
LIVING  IN  PRIVATE  HOUSES. 


Army. 

Navy. 

Total 

of 
both 

Place  of 

Rank. 

Total. 

Rank. 

Lieu- 
tenants. 

Total. 

Prison  Barrack. 

Gen- 
erals. 

Col- 
onels. 

Lieu- 
tenants. 

War- 
rant 
Officers. 

Army 
and 
Navy. 

Shizuoka 

Nagoya 

Fushimi 

Hirosaki 

Matsuyama. .  . 

1 

i 

1 
1 

3 
3 

1 
10 

1 
12 

*2 
1 
1 

1 
2 

13 
5 

17 

i 

i 

1 

2 

13 

5 

18 

Total 

2 

8 

24 

4 

38 

l 

1 

39 

CHAP.  II.,  SECT.  II.]      FREE   OUTDOOR   EXERCISE.  109 

As  soon  as  officer  prisoners  were  permitted  to  take  free 
outdoor  exercise,  in  April  of  1905,  the  Commander  of  the  Gar- 
rison at  Matsuyama  decided  to  permit  those  who  had  brought 
their  families  with  them,  or  who  had  special  reasons  for  want- 
ing the  privilege,  to  live  in  private  houses  within  the  limits 
of  the  city  of  Matsuyama. 

From  the  beginning,  it  was  by  Japan's  arrangements  that 
those  officer  prisoners  who,  on  account  of  their  special  circum- 
stances, wanted  to  live  in  private  houses  could  apply  for  the  per- 
mit to  the  Minister  of  War;  but  at  the  start,  when  the  number 
of  officer  prisoners  was  very  small,  there  were  none  in  circum- 
stances to  enable  them  to  apply  for  this  privilege,  and  no  such 
applications  were  sent  in.  But  when  their  number  increased, 
especially  after  the  arrival  of  a  large  number  from  Port  Arthur, 
there  came  to  be  so  many  applicants  for  this  privilege  by  virtue 
of  their  respective  circumstances  of  various  kinds  that  it  was 
impossible  to  grant  all  their  applications  without  hazarding  the 
maintenance  of  order.  Consequently  it  was  decided  to  grant  a 
few  applications,  selecting  those  who  had  the  most  important 
reasons  for  asking  the  privilege. 

Of  those  who  enjoyed  this  privilege  of  living  in  private 
houses,  Captain  Gemmerman  and  Lieutenant  Grinski,  both 
married  men,  were  prisoners.  Then  came  in  succession  war- 
correspondent  Tageff;  Major  General  Ganenfeld,  captured  in 
the  battle  of  Mukden;  Colonel  Prince  Gedroitz;  Lieutenant 
Colonel  Gringerberg,  once  very  famous  as  an  honorary  regi- 
mental commander;  Captain  Tarnovski,  who  had  once  be- 
haved like  a  madman  through  an  intense  love  of  his  wife,  and 
several  others;  the  number  of  such  homes  at  one  time  reaching 
sixteen. 

The  manner  of  life  of  those  who  had  this  privilege  was  quite 
different  from  that  of  their  fellow-officers  in  the  prison  bar- 
racks. They  each  formed  a  comfortable  home,  some  with  their 
wives,  and  some  with  their  relatives  or  old  friends,  and  all 
seemed  to  be  forgetting  the  misery  of  their  unfortunate  situa- 
tion.    As  it  will  be  interesting  to  know  the  way  they  lived,  a 


110  LAWS  OF  LAND   WARFARE.  [PART   II. 

description  of  a  few  examples  of  their  life  in  private  houses 
may  be  given. 

1.     Captain  Ivanoff. 

The  surrender  of  Port  Arthur  brought  to  Matsuyama  trans- 
port after  transport  full  of  Eussian  prisoners.  Among  these 
there  were  over  470  officers ;  and  of  these  officer  prisoners,  there 
were  not  a  few  whose  condition  called  forth  Japan's  deep  sym- 
pathy in  connection  with  their  brothers  or  children  who  were 
with  them  as  fellow-prisoners.  But  the  case  which  received 
most  sympathy  was  that  of  Second  Captain  Ivanoff.  It  was  on 
the  18th  of  January,  when  a  drizzling  rain  was  falling  and  a 
chilly  wind  blowing,  that  a  transport  from  Ujina  dropped 
anchor  alongside  the  pier  of  Takahama,  having  aboard  prisoners 
from  Port  Arthur.  Although  the  majority  of  the  officers  had  a 
well-cared-for  appearance,  the  common  soldiers  seemed  mostly 
much  neglected.  It  was  on  this  occasion  that  Second  Captain 
Ivanoff,  came  to  the  place  of  his  detention  with  a  sad  and  mel- 
ancholy countenance,  leading  by  the  hand  a  little  girl  of  seven 
or  eight  years  of  age.  She  was  a  lovely  girl,  but  her  pale  and 
timid  face  seemed  to  tell  a  story  of  long  trial  and  adversity 
deeply  impressed  in  her  little  heart  during  the  siege  of  Port  Ar- 
thur. When  the  Captain  was  taken  into  the  barrack  of  Ichiban 
Street,  his  charge  was  intrusted  to  Mr.  Bryan,  an  American 
missionary,  whose  family  was  apt  to  give  comfort  to  the  lonely 
and  miserable  girl,  he  having  five  or  six  children  in  his  home. 
Here  she  stayed  a  few  months.  Gradually  recovering  from  the 
fatigue  of  the  siege,  she  grew  cheerful  and  happy  as  soon  as  the 
privilege  of  living  in  a  private  house  was  granted;  shortly  the 
Captain  took  charge  of  his  daughter,  and  lived  jointly  in  a 
house  with  Tageff  for  a  short  time  until  he  hired  another 
house  for  himself  at  Samban  Street.  It  was  stated  that  his 
wife  had  died  six  years  before  in  Siberia,  but  that  he  had  not 
taken  a  second  wife  through  the  love  of  his  daughter.  Genya, 
which  was  the  girl's  name,  lived  with  her  father  in  Port 
Arthur,  and  more  than  once  during  the  siege  she  suffered  slight 
wounds  by  exploded  shells  which  fell  into  her  house.     It  was 


CHAP.  II.,  SECT.  II.]      FREE   OUTDOOR  EXERCISE.  Ill 

therefore  natural  that  the  dreadful  scenes  of  Port  Arthur  were 
so  deeply  impressed  on  her  that  for  a  long  time  after  her 
arrival  at  Matsuyama  she  was  frequently  found  in  her  sleep 
with  a  look  of  horror  on  her  face,  probably  seeing  in  her  dreams 
the  fearful  scenes  of  her  old  abode;  and  often,  even  in  the  day, 
she  would  seem  to  forget  herself  and  would  start  as  if  with  sud- 
den fright.  The  poor  father  received  the  more  sympathy  when 
we  learned  that  he  had  lost  two  sisters  of  the  little  Genya  while 
in  Manchuria. 

The  house  in  which  the  unfortunate  father  and  his  daugh- 
ter lived  was  a  small  building  with  three  or  four  rooms  and 
a  little  garden.  The  front  windows  faced  the  street,  which  was, 
however,  very  quiet,  and  did  not  disturb  the  quiet  of  the  house. 
Here  the  Captain  peacefully  and  comfortably  lived  with  his 
beloved  daughter,  employing  a  Japanese  maid-servant  as  cook, 
who  had  a  slight  knowledge  of  the  Eussian  language. 

It  was  in  August,  when  the  heat  of  summer  was  intense,  that 
a  Japanese  officer  of  the  prison  barracks  called  on  the  Captain. 
The  Captain  instantly  came  out  and  showed  the  officer  into  a 
room,  and  only  a  few  words  had  been  exchanged  when  the 
lovely  little  girl  came  into  the  room  with  a  sweet  smile  and 
offered  a  fan  to  the  visitor.  Then  the  Captain  rose  to  bring 
tea,  but  the  officer  declined  it,  and  was  about  to  leave,  when  the 
girl  again  came  in  with  a  dish  of  pineapple  and  a  fork,  and 
asked  the  visitor  to  help  himself  to  a  piece.  This  was  not  done 
by  order  of  the  father,  but  she  herself  wanted  to  entertain  the 
visitor,  and  had  sliced  the  fruit  neatly  and  brought  it  in.  She 
was  still  very  young,  and  was  of  an  age  when  children  often  do 
nothing  but  tease  their  mothers  for  sweets.  But  she  had  lost  her 
mother,  and  was  brought  up  by  her  father,  whom  she  was  able  to 
help  in  his  household  affairs  with  the  tender  hand  of  a  little 
child.  The  Captain  was  in  the  unfortunate  position  of  a  pris- 
oner, but  he  was  able  to  live  peacefully  with  his  dearly  beloved 
daughter  under  the  cordial  protection  of  the  Japanese  authori- 
ties, which  must  have  been  a  happy  feature  in  his  sad  circum- 
stances. 


112  LAWS   OF   LAND   WARFARE.  [PART   II. 


2.     Home  of  Grinski  and  Gemmerman. 

Lieutenant  Grinski  also  came  from  Port  Arthur.  His  wife, 
who  had  at  first  stayed  at  Nagasaki  with  her  little  child,  came  to 
Matsuyama  in  company  with  the  wives  of  some  other  officers. 
When  the  privilege  of  living  in  private  houses  was  granted,  the 
Lieutenant  hired  a  comparatively  spacious  house  at  Niban 
Street,  at  first  jointly  with  Captain  Gemmerman,  hut  later  oc- 
cupied the  house  himself  with  his  family  and  a  Japanese  maid- 
servant, the  Captain  having  got  another  place  for  himself. 
The  house  appeared  to  be  very  comfortable.  It  consisted  of 
two  buildings  with  a  garden  between  them;  and  the  rooms  with 
Japanese  mats  and  fittings  were  used  in  the  original  form  with 
an  addition  of  tables,  chairs,  paintings,  and  photographs  in  the 
alcove.  When  he  went  out  for  a  walk  or  on  business  he  used 
to  take  his  wife  with  him,  but  generally  left  his  child  with 
the  servant  in  the  house. 

Captain  Gemmerman  lived  at  Kaya  Street  with  his  wife 
and  youthful  daughter.  The  gate  faced  the  street,  but  the 
house  was  situated  far  towards  the  rear  of  the  garden.  It  was  a 
new  building  and  had  six  or  seven  rooms.  The  garden  was  not 
large,  but  had  an  artificial  hillock  and  a  pond  in  it,  and  beyond 
the  garden  there  was  an  outhouse  on  each  side,  one  being  used 
for  the  Captain's  private  room  and  the  other  for  his  official 
servant.  In  summer  this  private  outhouse  was  lined  with  white 
gauze  on  all  sides  to  prevent  mosquitoes  from  coming  in,  and 
was  used  as  a  general  living  room.  In  the  drawing  room  there 
was  besides  the  usual  tables  and  chairs,  a  red  banner  hung  on 
the  lintel  with  Chinese  characters  embroidered  on  it  in  gold,  set- 
ting forth  that  it  was  a  present  given  him  by  the  Chinese  people 
under  his  administration  in  appreciation  of  his  virtue.  In  short, 
Captain  Gemmerman  appeared  to  be  the  happiest  of  all  the 
officer  prisoners  who  lived  with  their  families. 

Indeed,  they  were  all  treated  by  Japan  more  like  welcome 
guests  invited  from  a  distant  country  than  like  prisoners,  cap- 
tured in  war. 


CHAP.  II.,  SECT.  III.]      PRISON   BARRACKS.  113 


Sect.  III.     Prison  Barracks. 

In  selecting  places  of  detention  for  prisoners  of  war,  Japan 
paid  special  attention  to  the  following  points: 

1.  The  healthfulness  of  the  place  and  its  adaptability  to 
the  comfort  of  the  prisoners. 

2.  The  feeling  of  the  people  of  the  place  towards  the  pris- 
oners. 

3.  The  facility  which  the  place  afforded  for  superintend- 
ing the  prisoners. 

Matsuyama,  for  instance,  was  situated  within  one  hour's 
travel  from  the  seacoast  of  Takahama  and  only  half  an  hour's 
distance  from  the  hot  spring  of*  Dogo.  The  climate  was  mild 
and  the  scenery  was  of  the  finest  in  Japan,  so  that  it  was  noted 
as  a  pleasure  resort,  attracting  health  seekers  at  all  times  of 
the  year.  The  town  also  had  a  history  of  having  received 
Korean  prisoners  of  war  five  hundred  years  ago.  The  inhab- 
itants were  sprightly  in  nature  and  had  no  hostile  feelings 
toward  foreigners.  Besides,  there  was  an  army  division  in  the 
town,  so  that  it  would  be  comparatively  easy  to  superintend 
the  prisoners.  These  were  the  reasons  that  Matsuyama  was  first 
selected  as  a  suitable  place  for  the  purpose.  Kyoto,  Himeji, 
and  Hamadera  in  the  neighbourhood  of  Osaka,  which  were 
also  adapted  for  keeping  Kussian  prisoners,  were  all  ex- 
cellent places,  noted  in  Japan  and  well  known  to  Europeans, 
so  that  it  is  not  necessary  to  describe  them  here.  Turning  to 
the  side  of  Kussia,  things  were  quite  different,  and  the  Eussian 
Government  cannot  escape  reproach  for  their  carelessness  when 
the  Japanese  prisoners  were  detained  at  Medved,  which  was 
situated  in  the  same  latitude  as  that  of  Chishima  (Kurile 
Islands),  and  which  was  a  place  opened  by  reclaiming  swamps 
and  marshes  still  full  of  dampness  and  a  noxious  atmosphere. 

In  receiving  Kussian  prisoners  into  barracks  care  was  taken 
to  make  a  distinction  according  to  race  and  religion.  Thus, 
those  belonging  to  the  Eoman  Catholic,  sect  were  separated  from 
those  of  the  Greek  sect  or  of  the  Jewish  sect,  and  the  latter 


114 


LAWS   OF  LAND   WARFARE. 


[PART   II. 


two  from  each  other.  The  pure  Kussians  were  also  separated 
from  the  people  of  Polish  origin.  The  following  table,  made 
on  the  31st  Oct.,  1905,  shows  the  particulars  of  the  separa- 
tion, and  also  shows  the  places  where  prisoner  barracks  were 
established  as  well  as  the  number  of  prisoners  kept  in  those 
places,  namely: 


Prison 
Barracks. 

Euro- 
pean 
Rus- 
sians. 

Poland- 
ers. 

Jews. 

Fin- 
landers. 

Tartars. 

Others. 

Total. 

Narashino .... 

Takasaki 

Sendai 

Shizuoka 

Toyohashi .... 
Nagoya 

13,271 

314 

1,852 

300 

871 

.  3,349 

1,232 

138 

186 

14 

4 

195 

1 

1,587 

35 

102 

58 

231 

262 

4 

10 

2 

499 

68 

2 

152 

123 

155 

0 

162 

35 

465 

214 
48 
55 

1 

1 
43 

0 

589 

49 

56 

4 
80 
74 

0 

0 

0 
87 
11 

1 
93 
41 
74 

0 
103 

6 
109 

0 
0 
0 
0 
0 
12 
0. 
0 
0 
0 
3 
,     1 
0 
1 
0 
0 
0 
10 
0 

1 

2 
3 

0 
0 
0 

1 

236 

5 

0 

0 

0 

147 

0 

0 

67 

56 

12 

66 

0 

0 

2 

0 

145 

10 

1 

62 

1 

15 

8 

19 

10 

67 

0 

26 

72 

4 

0 

47 

4 

833 

2 

428 

3 

230 

0 

4 

1 

1 

60 

8 

1 

73 

43 

35 

8 

26 

23 

143 

14,953 

531 

2,165 

319 

876 

3,793 

227 

22,373 

750 

Osaka 

Hamadera. . . . 
Otsu 

222 

19,364 

597 

1,070 

279 

5,395 

2,363 

52 

74 

39 

2,527 

390 

35 

1,804 

181 

1,890 

334 

687 

953 

3,262 

Fushimi 

Yamaguchi . .  . 
Kumamato . .  . 

Kurume 

Hirosaki 

Akita 

Yamagata. . .  . 
Kanazawa. . .  . 

Tsuruga 

Sabaye 

Himeji 

Fukuchiyama . 
Matsuyama. . . 
Marugame .... 

Zentsuji 

Kokura 

Fukuoka 

1,712 

359 

6,003 

2,699 

61 

87 

42 

3,318 

487 

40 

2,185 

391 

2,172 

350 

997 

1,027 

4,047 

Total 

61,475 

5,722 

1,739 

24 

929 

2,075 

71,964 

Sect.  IV.     Bureau  of  Information  for  Prisoners. 


Art.  XIV.  of  The  Hague  Convention  says : 1 

There  shall  be  established  at  the  outbreak  of  hostilities,  in  each  of 
the  belligerent  states,  and,  if  there  be  occasion,  in  neutral  states  which 
shall  have  received  belligerents  within  their  territories,  a  Bureau  of  In- 
formation in  respect  to  prisoners  of  war.  This  Bureau,  which  is  charged 
with  replying  to  all  applications  concerning  prisoners,  shall  receive  from 

1  See  also  Art.  XVI.  of  the  Convention  of  The  Second  Hague  Conference. 


CHAP.  II.,  SECT.  IV.]      BUREAU  OF  INFORMATION.  115 

the  several  branches  of  the  service  having  jurisdiction  of  the  same  all 
the  data  necessary  to  establish  the  individual  record  of  each  prisoner 
of  war.  It  is  to  be  kept  informed  as  to  internments  and  changes,  as  well 
as  to  deaths  and  admissions  to  hospitals. 

The  Bureau  of  Information  is  also  to  receive,  centralise,  and  trans- 
mit to  the  properly  interested  parties  all  articles  of  personal  property, 
valuables,  letters,  etc.,  which  shall  have  been  found  on  the  field  of  battle 
or  left  by  deceased  prisoners  in  ambulances  and  hospitals. 

In  explaining  the  Article,  M.  Eolin  remarks : 

M.  Beernaert  a  rappele*  que  l'initiative  de  ces  propositions  dega 
anciennes  est  surtout  due  a  M.  Romberg-Nisard,  qui,  apres  s'§tre 
d^voue  aux  victimes  de  la  guerre  en  1870,  n'a  cesse*  de  se  preoccuper 
d'ameliorer  pour  l'avenir  le  sort  des  combattants  blesses  ou  prisoniers. 

Ils'agit  en  premier  lieu,  dans  dispositions  additionnelles,  de  rendre 
g6n6rale  l'organisation  de  bureaux  de  renseignements  sur  les  prison- 
iers, analogues  a  celui  qui  fut  institutue"  en  Prusse  d£s  l'annee  1866 
et  qui  rendit  de  si  grands  services  durant  la  guerre  de  1870-71.  C'est 
l'objet  du  premier  de  ces  articles  (Art.  XIV). 

As  may  be  seen  in  this  remark,  a  Bureau  of  Information 
existed  prior  to  the  time  of  The  Hague  Convention,  such  as  the 
body  of  volunteer  nurses  formed  in  Prussia  during  the  Austro- 
Prussian  War  of  1866,  the  purpose  of  which  was  to  report  the 
conditions  of  the  sick  and  wounded  to  their  respective  families 
at  home;  or  the  Bureau  of  Information  established  at  Berlin 
during  the  war  of  1870,  where  an  individual  record  was  first 
devised,  by  means  of  which  various  reports  about  the  sick  and 
wounded  were  collected  and  sent  out.  But  it  was  not  until  the 
late  Russo-Japanese  War  that  a  Bureau  of  Information  in  its 
complete  form  was  established  as  a  state  institution  according 
to  The  Hague  Convention.  The  Bureau  of  Information  estab- 
lished at  Berlin  in  1870  was  a  mere  private  body  of  Prussian  vol- 
unteer nurses,  and  its  functions  went  no  farther  than  to  simply 
report  to  their  families  the  condition  of  the  sick  and  wounded. 
In  1893  France  issued  regulations  for  the  treatment  of  pris- 
oners of  war,  in  which  it  was  prescribed  as  the  duty  of  a  bellig- 
erent to  establish  a  Bureau  of  Information  as  a  state  institution 
for  giving  reports  on  prisoners  in  general  without  distinction  of 


116  LAWS   OF   LAND   WARFARE.  [PART   II. 

their  being  sick  or  wounded  or  not.  But  France  has  not  en- 
tered into  war  with  any  other  civilised  country  since  that  year, 
and  has  had  no  opportunity  of  putting  the  regulations  into  prac- 
tice. Of  the  latest  wars,  the  one  of  1898  between  the  United 
States  and  Spain  was  prior  to  The  Hague  Convention,  and  in 
the  South  African  war  of  1901  England  would  not  hold  her- 
self responsible  to  establish  a  Bureau  of  Information,  the  South 
African  Eepublic  not  having .  been  a  signatory  Power  of  the 
Conference  at  The  Hague.  It  may  be  stated  in  this  connection 
that  Japan  deserves  high  praise  from  the  world  for  her  strenu- 
ous exertions  not  only  in  enacting  elaborate  laws  concerning  a 
Bureau  of  Information,  but  in  putting  them  into  operation 
in  regard  to  more  than  70,000  Eussian  prisoners,  as  well  as 
the  sending  back  of  private  articles  left  on  the  field  by  the 
Kussians  killed  in  battle. 

The  following  explains  how  a  Bureau  of  Information  came 
into  existence  in  Japan. 

As  soon  as  the  war  broke  out  between  Japan  and  Eussia  in 
February  of  1904,  the  Japanese  War  Department  started  to 
make  preparation  for  establishing  a  Bureau  of  Information, 
and  appointed  Dr.  Akiyama,  one  of  the  well-known  specialists 
in  International  Law,  a  Councillor  of  the  Department,  to  make 
a  special  investigation  in  regard  to  the  institution.  On  the 
12th  of  the  same  month  General  Terauchi,  Minister  of  War, 
sent  the  following  note  to  Baron  Komura,  Minister  of  For- 
eign Affairs,  namely : 

"Enclosed  please  find  a  draft  of  Regulations  for  a  Bureau  of  In- 
formation, which  I  have  had  drawn  up,  concerning  the  rules  and  usages 
of  war  on  land.  If  you  find  no  objection  in  it,  I  want  to  present  it 
to  the   Cabinet  under  joint  signatures  with  you." 

Thus,  the  Eegulations  concerning  a  Bureau  of  Information 
were  produced  before  the  Cabinet  Council  under  the  initiative 
taken  by  both  the  Foreign  Minister  and  the  Minister  of  War. 

A  few  days  later  the  French  Minister  sent  a  note  request- 
ing the  establishment  of  a  Bureau  of   Information  to  make 


CHAP.  II.,  SECT.  IV.]      BUREAU   OF   INFORMATION.  117 

clear  the  names  and  official  rank  of  the  Kussian  prisoners  and 
of  those  who  were  dead. 

To  this  the  Japanese  Minister  of  War  answered  that  Japan 
was  quite  willing  to  establish  a  Bureau  of  Information,  and 
that  when  it  should  be  opened,  the  request  of  the  Kussians 
would  be  complied  with  according  to  the  following  conditions: 

Conditions  for  Reporting. 

1.  The  name,  age,  nationality,  social  as  well  as  official  rank,  and 
corps  name  of  every  prisoner,  alive  or  dead,  shall  be  reported  in  a 
batch  every  ten  days. 

2.  As  the  Japanese  Government  will  give  the  above  report,  the  Rus- 
sian Government  should  give  the  United  States  Embassy  or  Consulate 
in  Russia  a  similar  report  about  our  prisoners.  Letters  despatched 
or  received  by  prisoners  of  war,  shall  enjoy  the  privilege  of  being 
exempted  from  postal  charges  and  that  articles  intended  as  gifts  or 
relief  for  prisoners  of  war  shall  be  free  from  all  duties  and  from  any 
charges  on   Government  railways. 

ESTABLISHMENT    AND    OPENING    FOR    BUSINESS    OF    THE 
BUREAU    OF    INFORMATION. 

The  Bureau  was  organised  by  Imperial  Ordinance  No.  44,  dated 
February  27,  1904,  and  on  the  26th  of  the  same  month  Major-general 
S.  Ishimoto  was  appointed  President,  with  a  staff  of  officials.  The 
Bureau  began  its  duties  at  the  war  Office  on  the  29th  of  that  month. 

RECEIPT    OF    INFORMATION. 

Immediately  upon  the  establishment  of  the  Bureau  the  President 
placed  himself  in  communication  with  the  commanding  officers  of  the 
several  armies  in  the  field,  the  Commander-in-chief  of  the  fleet,  the 
Commanders-in-chief  of  all  naval  stations,  and  the  President  of  the 
Red  Cross  Society,  asking  for  information  relative  to  any  prisoners  of 
war  who  might  be  taken,  as  well  as  to  any  of  the  enemy  who  might 
be  killed. 

With  regard  to  officers  it  is  specially  arranged  that  the  Bureau  shall 
receive  details  by  telegraph  direct  from  the  field  as  far  as  circum- 
stances  may   permit. 

The  Bureau  is  maintaining  close  touch  with  the  prison  barracks. 

Thus  the  Bureau  is  in  a  position  to  procure  promptly,  by  every 
available  means,  authentic  and  precise  information  about  prisoners. 


118  LAWS   OF  LAND   WARFARE.  [PART   II. 

DISSEMINATION  OF  INFORMATION  SO  OBTAINED. 

Hitherto  there  have  been  inquiries,  in  a  few  cases,  relative  to  pris- 
oners of  war,  or  concerning  those  whom  it  was  thought  might  have 
fallen  in  battle;  these  inquiries  have  been  received  from  persons  of 
various  nationalities,  and  in  every  instance  the  Bureau  has  rendered 
all  the  assistance  in  its  power,  often  causing  special  investigation  to 
be  made  before  giving  a  reply. 

On  August  15,  1904,  the  Bureau  of  Information  in  St. 
Petersburg  sent  a  telegram  to  the  Bureau  of  Information  in 
Tokyo,  asking  to  have  direct  communication  between  them  for 
the  sake  of  expediting  the  business  relative  to  prisoners.  To 
this  the  Japanese  authorities  consented. 

Thus  the  means  of  reporting  the  condition  of  prisoners  be- 
came much  more  convenient,  and  reports  such  as  the  example 
mentioned  below  were  regularly  interchanged  to  the  mutual 
satisfaction  of  both  nations.  The  readers  are,  however,  re- 
quested to  take  note  that  the  number  of  Japanese  prisoners 
in  Kussia,  having  been  comparatively  small,  it  was  rather  an 
easy  task  for  Eussia  to  give  the  reports;  while  Japan,  which 
had  more  than  70,000  Eussian  prisoners  on  her  hands,  experi- 
enced no  small  amount  of  difficulty  in  making  out  reports  even 
so  simple  as  the  example  here  given,  namely: 

Bureau  Central  de  Renseignements  des  Prisonniers  de  Guerre. 

28  Janvier,  1905. 
No.   145. 

St.  Petersburg,  Pantileimonskaya. 
Le  Bureau  Central  Russe  de  renseignements  des  prisonniers  de  guerre 
a  l'honneur  de  vous  informer,  que  deux  soldats  Japonais  du  48  regi- 
ment d'infanterie  de  reserve:  Saruwatari  Genko  et  Matoshima  ont  6te 
faits  prisonniers  le  31  decembre,  1904.  ^ 

Sect.  V.  Restoration  of  Personal  Property  Left  by  Russian 
Soldiers. 

In  accordance  with  Art.  XIX.  of  The  Hague  Convention, 
the  Japanese  Bureau  of  Information  did  its  best  to  return  to 
the  properly  interested  parties  all  articles  of  personal  property, 


CHAP.  II.,  SECT.  V.]      PRISONER'S   PERSONAL   PROPERTY.  119 

valuables,  etc.,  which  were  found  on  the  field  of  battle  or  left 
by  deceased  prisoners.  There  were  innumerable  examples  of 
this,  but  one  only  will  be  shown  here. 

On  the  20th  of  May,  1904,  the  Japanese  Foreign  Minister 
sent  a  note  concerning  Lieutenant  Demidowitch  who  was  killed 
on  the  battle-field,  and  the  articles  left  by  him,  as  the  follow- 
ing list  shows: 

List  of  Articles   Left  by  Lieutenant  Demidowitch,  Killed  on  the 

Field  of  Battle. 
1  Officer's  Purse,  containing: 

6  5-ruble  Russian  paper  money, 
3  3-ruble 
11  1-ruble 
3  Photographs, 
1  Photograph  Album, 
1  Officer's  Note-book. 

To  this  letter  the  French  Minister  replied  as  follows: 

Legation  de  la  Republique  Francaise  au  Japon. 

Tokyo,  le  20  Mai,  1904. 
Monsieur  le  Baron  : 

J'ai  l'honneur  d'accuser  reception  a  Votre  Excellence  de  sa  lettre 
du.20  courant  transmissive,  de  la  part  du  Bureau  des  Prisonniers  d'un 
airs  de  deces  du  Lieutenant  d'infanterie  Russe  Vladimir  Adamowitch 
Demidowitch  tue  le  12  avril,  1904,  and  environs  de  Wiju,  ainsi  que 
des  objets  trouv§s  sur  cet  officier. 

Je  remercie  Votre  Excellence  de  cette  communication  et  la  prie  de 
vouloir  bien  agreer  les  assurances  de  ma  tr£s  haute  consideration. 

J.  Harmand. 
Son  Excellence  le  Baron  Komura, 
Hinistre  des  Affaires  Etrangeres. 

It,  however,  involved  too  much  trouble  to  transmit  these 
articles  through  the  French  Ministry,  the  occurrence  not  being 
limited  to  a  few  cases,  but  happening  thousands  of  times. 

The  French  Minister  therefore  made  the  following  proposal. 

On  May  30,  1904,  the  French  Minister  suggested  to  the 
Japanese  Government  that  some  change  in  the  management 
should  be  introduced. 


120  LAWS  OF  LAND  WARFARE.  [PART  II. 

To  this  proposal  General  Terauchi,  Minister  of  War,  con- 
sented, and  adopted  the  following  rules: 

1.  The  clothes,  caps,  sacred  images,  cross,  and  other  things  of 
low  value  that  belonged  to  deceased  prisoners  of  war,  shall  be  buried 
together  with  the  dead  bodies. 

2.  The  cloaks  and  other  articles  supplied  by  the  Russian  Govern- 
ment shall  be  taken  charge  of  by  the  Prisoner  Barracks  and  be  used 
for  other  prisoners,  except  those  extremely  soiled,  which  shall  be  thrown 
away. 

3.  The  private  property,  such  as  clothes,  shall  be  sold  to  the  fel- 
low-prisoners of  the  deceased;  and  the  proceeds,  attached  with  the 
list  of  the  articles  sold,  together  with  gold  and  silver  wares,  coins, 
documents,  medals,  keepsakes,  charitable  gifts,  etc.,  shall  be  sent  to 
the  French  Legation  through  the  Bureau  of  Information. 

The  table  on  next  page  shows  the  number  and  kind  of  articles  left 
by  deceased  prisoners. 


CHAP.  II.,  SECT.  V.]      PRISONER'S   PERSONAL   PROPERTY.  121 


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122  LAWS   OF  LAND  WARFARE.  [PART   II. 

Sect.  VI.     Postal  Regulations. 

Art.  XVI.  of  The  Hague  Convention  runs  thus: 

Bureaus  of  Information  shall  be  entitled  to  freedom  of  transport. 
Letters,  or  drafts,  and  sums  of  money,  as  well  as  postal  packages  ad- 
dressed to  prisoners  of  war,  or  sent  by  them,  shall  be  exempt  from  all 
postal  dues,  not  only  in  the  countries  of  origin  and  destination,  but 
also  in  intermediate  countries.  Charitable  gifts  and  relief  in  kind  des- 
tined for  prisoners  of  war  shall  be  admitted  free  of  import  duty,  and 
shall  be  transported  free  of  cost  on  railways  operated  by  the  state. 

During  the  late  war,  in  virtue  of  a  proclamation  by  the 
Department  of  Communications,  all  gifts  and  relief  in  kind 
for  the  prisoners  shall  be  exempt  from  charges  for  carriage  by 
the  State  Railways. 

The  Department  of  Finance  further  announced  that  such 
gifts  and  relief  in  kind  shall  be  in  all  cases  admitted  free  of 
duty  when  coming  from  abroad.  On  application,  moreover, 
they  shall  be  exempt  from  internal  taxation. 

The  following  is  the  official  translation  of  the  Postal  Reg- 
ulations : 

Reglement  postal  concernant  les  prisonniers  de  guerre. 

1.  Les  envois  postaux  concernant  les  prisonniers  de  guerre,  d€sign6s 
comme  tels  dans  ce  reglement,  sont  les  correspondances  internes  ou 
internationales,  expedites  ou  regues  soit  par  les  bureaux  de  renseigne- 
ments  sur  le  service  de  ces  prisonniers,  soit  par  ces  personnes  elles- 
memes. 

2.  Les  envois  postaux  concernant  les  prisonniers  de  guerre  sont  regis 
d'aprSs  les  dispositions  generates  relatives  au  service  postal  interne  ou 
international  dans  tout  ce  qui  n'est  pas  pr6vu  par  ce  reglement. 

3.  L'expediteur  doit  inscrire  la  mention  ou  "  service  des  prisonniers 
de  guerre  "  sur  la  face  de  ces  envois. 

4.  Ces  correspondances  sont  exemptees  de  toutes  taxes  postales,  en 
vertu  des  trait§s. 

5.  Les  rScepisses  pour  des  envois  recommandes  ou  avec  valeurs 
declarers  et  des  colis  postaux,  expedies  ou  recus  par  les  prisonniers  de 
guerre  doivent  etre  soit  remis  aux  chefs  des  depots  de  ces  personnes, 
soit  donn6s  par  eux. 

Reglement  pour  les  mandats  de  poste   concernant  les 
prisonniers  de  guerre. 

1.  Les  mandats  de  poste  concernant  les  prisonniers  de  guerre,  de- 
signed comme  tels  dans   ce  reglement,  sont  les  mandats  ordinaires  in- 


CHAP.  II.,  SECT.  VII.]      SUPPORT  AND   PAY.  123 

ternes  et  internationaux,  exp6dies  cm  regus  soit  par  les  prisonniers  de 
guerre,  soit  dans  l'int6ret  de  ces  personnes. 

2.  Les  mandats  de  poste  concernant  les  prisonniers  de  guerre  sont 
regis  d'apres  les  dispositions  generates  relatives  aux  mandats  internes 
ou  internationaux,  dans  tout  ce  qui  n'est  pas  prevu  par  ce  reglement. 

3.  Ces  mandats  sont  exemptes  de  toutes  taxes,  en  vertu  des  traites. 

4.  L'expediteur  de  ces  mandats  doit  deposer,  au  bureau  de  poste, 
l'application  avec  la  mention  "  Service  des  prisonniers  de  guerre." 

5.  Les  fonds,  les  titres  et  Jes  autres  documents  a  livrer  aux  prison- 
niers de  guerre  a  l'egard  de  ces  mandats  sont  remis  aux  chefs  des  depots 
de  ces  personnes  sans  la  formality  d'autorisation. 

6.  Les  chefs  des  depots  des  prisonniers  de  guerre  peuvent,  au  nom 
de  ces  personnes  et  sans  la  formalite  d'autorisation,  faire  au  bureau  de 
poste  des  demandes  de  toute  nature  a  l'egard  de  ces  mandats. 

Sect.  VII.     Support  and  Pay  of  Prisoners  of  War. 

Art.  VII.  of  The  First  and  Second  Hague  Convention  de- 
clares : 

The  government  in  whose  power  prisoners  of  war  happen  to  be  is 
charged  with  their  support.  In  the  absence  of  a  special  understand- 
ing between  the  belligerents,  prisoners  of  war  shall  be  treated,  in  re- 
spect to  food,  lodging,  and  clothing,  in  the  same  way  as  the  troops 
of  the  government  which  has  captured  them. 

In  the  Eusso-Japanese  War  Japan  went  a  step  farther  than 
the  principle  of  this  rule,  and  gave  to  Eussian  prisoners  of  war 
better  treatment  than  that  given  to  her  own  troops. 

As  to  the  Pay  of  Prisoners  we  had  great  questions. 

Art.  XVII.  of  The  Hague  Convention  says: 

Les  officiers  prisonniers  pourront  recevoir  le  complement,  s'il  y  a 
lieu,  de  la  solde  qui  leur  est  attribute  dans  cette  situation  par  les 
rSglements  de  leur  pays,  a  charge  de  remboursement  par  leur  governe- 
ment. 

Note  the  English  translation: 

Art.  XVII.  Officers  who  are  prisoners  of  war  shall  receive 
the  portion,  if  any  there  be,  of  the  pay  allowed  them,  as  prison- 
ers of  war,  by  the  regulations  of  their  own  country,  on  condition 
that  it  be  reimbursed  by  their  own  Government. 

(By  Davis.) 


124 


LAWS   OF   LAND   WARFARE. 


[part  n. 


Art.  XVII.  Officers  taken  prisoners  may  receive,  if  neces- 
sary, the  full  pay  allowed  them  in  this  position  by  their  coun- 
try's regulations,  the  amount  to  be  repaid  by  their  Government. 

(By  Toll.) 

Professor  Holland  translated  this  article  in  his  work,'  The 
Laws  and  Customs  of  War  on  Land,  as  follows : 

Officers  taken  prisoners  may  receive,  in  proper  cases,  the 
full  pay  allowed  them  while  in  this  position  by  the  regulations 
of  their  own  country,  the  amount  to  be  repaid  by  their  Gov- 
ernment. 

The  French  original  is  quite  ambiguous,  and  it  is  difficult 
to  say  which  of  the  translations  is  correct.  At  a  meeting  of 
a  committee  of  our  Foreign  Department  Japan  discussed  it, 
but  could  not  come  to  a  decision.  The  rule  ought  to  be  made 
more  clear.  During  the  Kusso-Japanese  War,  however,  there 
was  no  occasion  to  put  the  rule  into  practical  application;  for 
Russia  made  a  regular  remittance  of  money  to  the  French  Con- 
sul, and  it  was  distributed  to  Russian  prisoners  every  month. 

The  following  table  shows  the  amounts  distributed,  namely: 


Generals. 

From 
Colonel 
to  Major. 

From 
Captain 
to  Second 
Lieu- 
tenant. 

Warrant 
Officers. 

Non- 
commis- 
sioned 
Officer. 

Chief  of 
Sergeant 
and  First 
Sergeant. 

Second 

Ser- 
geant. 

Soldiers. 

150  yen 

75  yen 

50  yen 

41  yen 

25  yen 

3  yen 

1  yen 

50  cents 

In  The  Second  Hague  Convention  the  real  meaning  of  the 
article  is  made  quite  clear.  It  runs  thus:  Officers  who  become 
prisoners  shall  receive  the  pay  to  which  officers  of  their  grade 
are  entitled  in  the  country  where  they  are  being  detained,  the 
amount  to  be  repaid  by  their  government. 


Sect.  VIII.     Labour  of  Prisoners  of  War. 

Art.  VI.  of  The  First  Hague  Convention  says: 

The  state  may  employ  prisoners  of  war  as  labourers,  according  to 
their  rank  and  aptitude.  These  labours  shall  not  be  excessive,  and 
shall  have  no  connection  with  the  operations  of  the  war. 


CHAP.  II.,  SECT.  VIII.]      LABOUR  OF  PRISONERS.  125 

Prisoners  may  be  authorised  to  be  employed  in  the  public  adminis- 
tration, or  by  private  individuals,  or  on  their  own  account. 

Work  done  for  the  state  shall  be  paid  for  in  accordance  with  the 
rates  of  pay  allowed  to  military  persons  of  the  national  army  when 
engaged  upon  the  same  work.  When  work  is  done  for  other  departments 
of  the  government,  or  for  private  individuals,  the  conditions  of  labour 
shall  be  regulated  by  agreement  with  the  military  authorities. 

The  pay  of  prisoners  shall  be  employed  to  ameliorate  their  condition, 
and  the  surplus,  after  the  expenses  of  their  maintenance  have  been 
deducted,  shall  be  paid  over  to  them  at  the  instant  of  their  liberation. 

Based  on  the  principle  of  this  rule,  Japan  issued  the  follow- 
ing regulations : 

REGULATIONS  OF  THE  SUPERINTENDENT  OF  PRISONERS  WHO 
ARE  EMPLOYED   IN  ROAD-BUILDING. 

Art.  I.  The  labour  of  prisoners  must  be  less  than  eight  hours  per 
day,  beginning  at  8  o'clock  a.m.  and  ending  at  4  o'clock  p.m. 

Art.  II.  Prisoners  in  service  have  holidays  on  every  Sunday,  every 
great  festival  day,  and  every  great  Russian  festival  day. 

Art.  III.  For  the  present,  30  prisoners  are  employed  in  this  service, 
and  a  petty  officer  and  a  soldier  are  appointed  as  their  superintendents, 
and  also  a  constable  from  the  local  police  office. 

The  number  of  superintendents,  as  well  as  the  number  of  prisoners 
in  service,  may  be  increased  if  it  is  necessary. 

Art.  IV.  Prisoners  in  service  must  return  to  their  prison  barrack 
every  day,  and  are  not  allowed  to  stay  outside. 

Art.  V.  Prisoners'  and  their  superintendents'  railroad  fare  between 
the  prison  barrack  and  their  working  place  must  be  paid  by  the  Iyo 
Railroad  Company. 

Art.  VI.  For  the  present,  interpreters  should  be  despatched  from 
the  prison  barrack  at  Matsuyama. 

Art.  VII.  Monthly  payment  is  allowed  regarding  the  payment  of 
wages  of  prisoners  to  the  government,  and  the  company  must  pay  it 
to  the  paymaster  of  the  prison  barrack  at  Matsuyama. 

The  regulations  were  issued,  but  Japan  as  a  state  did  not  impose 
labour  on  the  Russian  prisoners.  As  to  employing  the  labour  of  pris- 
oners by  private  individuals,  there  was  but  one  case,  which  was  at 
Himeji,  where  a  private  individual  caused  certain  Russian  prisoners  to 
make  leather.  From  olden  times  Himeji  had  been  noted  for  producing 
leather;  and  it  was  from  a  desire  to  learn  the  Russian  method  of 
making  leather  that  the  prisoners  were  employed  there.  The  reason 
that  the  Japanese  Government  did  not  make  use  of  the  labour  of  Rus- 
sian prisoners,  notwithstanding  their  having  issued  regulations  about 
it,  was  that  even  a  simple  superintendent  of  so  many  Russians  required 
a  rather  large  number  of  our  officers,  and  it  would  have  required  several 


126  LAWS   OF  LAND   WARFARE.  [PART  II, 

other  arrangements  to  make  the  prisoners  work  as  labourers.  Japanese 
individuals  also  did  not  employ  the  labour  of  the  Russians,  because 
they  did  not  find  any  special  need  of  Russian  labour  in  addition  to  the 
native  labour,  which  satisfied  nearly  every  demand.  No,  these  were  not 
all.  There  was  another  cause,  a  cause  much  more  important,  namely: 
Russian  prisoners  themselves  refused  to  work.  Some  stated  that  they  did 
not  want  to  work  so  long  as  the  Japanese  Government  supported  them, 
and  that  even  if  they  did  they  would  not  work  for  Japanese  wages; 
while  others  declared  that  they  would  work  for  their  own  country, 
but  not  for  their  enemy.  Thus  they  refused  to  take  labour,  not  accord- 
ing to  the  principle  of  International  Law,  such  as  The  Hague  Conven- 
tion, but  from  their  feelings  as  individuals.  t 

Here  it  is  necessary  to  study  the  following  point: 

Relation  Between  the  Labour  and  Support  of  Prisoners  of  War. 

Art.  VII.  of  The  First  and  Second  Hague  Conventions  says 
that  the  government  in  whose  power  prisoners  of  war  happen 
to  be  is  charged  with  their  support.  Prisoners  are  fed  and 
clothed  at  the  expense  of  the  state  which  holds  them  in  cap- 
tivity, and  they  sometimes  also  receive  a  cash  allowance.1 

During  the  war  of  1870  France  paid  to  officers  from  £4  to 
£13  105.  per  month,  according  to  their  rank,  and  to  private 
soldiers  7.50c.  per  day.  Germany  was  not  so  liberal;  privates 
received  nothing,  and  officers  from  £1  16s.  to  £3  15s.  per  month. 
(D'angeberg,  No.  694.) 

It,  however,  was  formerly  the  custom  for  each  state  to  pay 
the  cost  of  the  maintenance  of  its  prisoners  in  the  enemy's 
country,  and  when  advances  were  made  by  the  enemy  for  the 
subsistence  of  the  prisoners  accounts  were  sometimes  balanced 
from  time  to  time  during  the  war,  and  sometimes  at  its  ter- 
mination. 

Several  treaties — e.  g.,  those  of  Paris  in  1763  (De  Martens, 
Eec.  i.  64),  of  Versailles  in  1783,  between  England  and  the 
United  Provinces  in  1783,  between  the  United  J3tates  and 
Prussia  in  1785,  of  America  in  1802,  of  Paris  in  1814  (Nouv. 
Eec.  ii.  16),  and  of  Ghent  in  1814 — contain  stipulations  for  re- 
payment of  the  amount  expended  on  either  side. 

I  Hall,  p.  424. 


CHAP.  II.,  SECT.  VIII.]      SWORDS   AND    PRISONERS.  127 

According  to  this  new  principle,  a  State  which  keeps  pris- 
oners of  war  in  captivity  undertakes  on  one  part  to  pay  the 
expenses  of  supporting  them,  and  on  the  other  can  impose 
labour  on  them;  and  taking  Arts.  VI.  and  VII.  of  The  Hague 
Convention  as  supplementing  each  other,  the  State  has  the  right 
of  deducting  the  expenses  of  their  maintenance  out  of  the 
wages  earned  by  their  labour. 

But  it  is  a  question  whether  the  new  principle  is  feasible 
in  practice  or  not.  According  to  the  actual  state  of  things 
during  the  Russo-Japanese  War,  Eussian  prisoners  declined  to 
take  labour,  and  Japan  did  not  force  it,  the  result  being  that 
the  Japanese  Government  had  to  pay  the  expenses  of  support- 
ing Eussian  prisoners  without  being  able  to  deduct  anything 
out  of  the  wages  that  they  should  have  earned.  Consequently 
it  is  not  a  practicable  rule  to  make  it  the  obligation  of  a  State 
to  support  prisoners  as  prescribed  in  Art.  VII.  on  the  reason 
or  reciprocation  of  its  having  the  right  of  imposing  labour  on 
them. 

At  the  end  of  the  Eusso-Japanese  War,  Japan  and  Eussia 
agreed  by  the  Portsmouth  Treaty  to  refund  to  each  other  the 
expenses  paid  out  on  account  of  the  prisoners  of  war.  This 
was  clearly  the  restoration  of  the  old  principle,  and  appar- 
ently it  is  a  principle  feasible  in  practice.  Therefore  it  is  be- 
lieved that  Article  VII.  of  The  Hague  Convention  ought  to  be 
corrected  accordingly. 

Sect.  IX.     Wearing  Swords  by  Prisoners. 

Prisoners  from  Port  Arthur,  having  an  idea  of  honourable 
capitulation  and  having  had  money  distributed  to  them  by 
General  Stoessel  at  capitulation,  were  very  haughty  towards 
other  prisoners.  Among  them  there  were  many  who  resisted 
the  orders  to  take  away  the  swords  they  wore.  The  Eussian 
officers  who  were  made  prisoners  of  war  by  the  capitulation 
of  Port  Arthur  were  sent  to  Japan  with  their  swords  by  them. 
One  of  the  terms  of  the  capitulation  allowed  them  to  wear  their 
swords,  so  that  they  thought  it  would  be  right  to  wear  them 


128  LAWS  OF  LAND   WARFARE.  [PART  II. 

even  after  arriving  in  Japan.  They  were  advised  to  take  off 
their  swords  by  the  superintendent  regulations  at  Matsuyama, 
but  they  did  not  comply.  On  the  19th  of  January,  1905, 
an  order  was  issued  to  the  effect  that  the  swords  the  pris- 
oners were  wearing  would  be  taken  away  at  10  o'clock  a.m. 
on  the  20th  at  prison  barracks.  The  captured  officers  peti- 
tioned for  delay,  and  it  was  granted  by  Japan's  authority. 
Then  the  higher  officers  stated  that  while  they  were  too  con- 
scientious to  deliver  their  swords  themselves  they  would  have 
no  objection  to  have  them  taken  away  by  the  Japanese  com- 
mittee. Thereupon  Captain  Yoshimatsu  visited  the  cham- 
bers of  the  captured  officers  of  higher  rank  and  gently  took 
away  their  swords.  Then  the  Japanese  officers,  calling  the  pris- 
oners of  lower  rank  to  the  office,  took  away  their  swords,  fin- 
ishing the  ceremony  at  half-past  one  in  the  afternoon. 

At  half-past  two  in  the  afternoon  the  committee,  accom- 
panied by  an  interpreter  visited  the  branch  prison  barrack  at 
Mioseiji,  and  called  several  prisoners  of  high  rank  to  the  office 
and  ordered  them  to  remove  the  swords  they  were  wearing. 
Some  of  them  complied,  but  others  raised  objections.  There- 
upon the  committee  entered  the  prisoners'  chamber  with  the 
interpreter  and  commanded  them  to  take  off  their  swords. 
There  were  a  few  officers  who  gave  up  their  swords  themselves, 
but  when  two  officers  angrily  broke  their  swords,  all  the  others 
imitated  them  and  confusion  arose.  Two  of  them  were  placed 
under  arrest,  and  others  were  advised  to  deliver  their  swords. 
But  at  last  the  swords  were  taken  away  at  the  Ichibancho  Bar- 
racks at  4.40  in  the  afternoon  of  the  same  day. 

The  Eussian  officers  complained,  and  sent  several  notes 
through  the  hands  of  the  French  Minister. 

But  Eegulations  on  this  point  are  clear.  The  Imperial 
Government  of  Japan  sent  a  reply  to  the  French  Minister  on 
the  16th  of  March,.  1905,  stating  that  the  protest  of  the  Eus- 
sian Government  had  no  grounds,  because  those  Eussian  offi- 
cers who  declined  to  be  released  by  parole  in  Port  Arthur  and 
who  chose  to  be  prisoners  at  Matsuyama  must  be  treated  just 


CHAP.  II.,  SECT.  X.]      PRISONERS'    OFFENCES.  129 

as  other  prisoners  are,  according  to  Art.  VIII.  of  annex  of  the 
Hague  Convention.  In  fact,  they  were  allowed  to  wear  their 
swords  at  the  time  of  capitulation,  but  they  must  surrender 
them  when  they  became  prisoners  of  war,  according  to  Art.  X. 
of  Regulations  for  Prisoners'  Treatment.  The  swords  of 
Russian  prisoners  were  returned  to  them  at  the  time  of  their 
release  by  Art.  XXIX.  of  the  same  Eegulations. 

Sect.  X.     Prisoners'  Offences. 

The  offence  to  which  prisoners  are  most  tempted  is  that  of 
attempting  to  escape. 

Theoretically  we  cannot  say  that  prisoners  ought  not  to  es- 
cape. Nay,  it  is  considered  proper,  because,  though  unfor- 
tunately having  fallen  into  enemy's  hands,  yet  it  may  be  the 
loyal  combatants'  earnest  desire  to  serve  their  own  country  if 
chance  allows  it.  If  they  should  be  successful  in  escaping,  they 
would  not  be  punished  for  doing  so,  on  their  recapture.  But 
from  the  view  point  of  the  authorities  who  interned  them, 
the  escape  of  prisoners  must  be  prevented  by  all  means,  so  as 
to  decrease  the  enemy's  fighting  force.  Among  prisoners  in- 
terned at  Matsuyama,  there  were  6  officers  and  13  petty  officers 
and  soldiers  who  made  unsuccessful  attempts  to  escape  and  were 
punished  by  Court-martial. 

A  peculiar  offence  is  theft  of  electric  force.  When  a  mem- 
ber of  the  Electric  Light  Company  was  despatched  to  repair 
glass  lamp  chimneys  of  electric  lights  in  Tairinji  Prison 
Barracks  at  Matsuyama,  one  day  in  September,  1905,  he 
found  that  a  bulb  of  16  candle  power  had  been  replaced  by 
one  of  32  candle  power.  On  inquiry,  it  was  found  that  Greeve, 
Second  Lieutenant  of  the  Russian  Navy,  had  bought  a  higher 
power  bulb  in  the  city  and  was  using  it  in  place  of  the  16 
candle-power  bulb  which  was  being  paid  for.  These  men  said 
that  in  Russian  warships  it  is  permitted  to  use  a  higher  electric 
power  in  this  way,  and  if  necessary  they  will  pay  the  cost. 
This  means  that  theft  is  not  an  offence  if  the  offenders  pay 
the  price,  and  that  they  offended  because  they  are  accustomed 


130  LAWS   OF  LAND   WARFARE.  [PART   II. 

to  offend.     Of  course  there  are  some  lawyers  who  persist  that 
the  theft  of  electricity  does  not  amount  to  an  offence. 

But  the  Electric  Light  Company  had  been  receiving  an  ap- 
preciable pecuniary  damage,  and  such  an  offence  must  be  pun- 
ished. Accordingly  they  were  punished  by  Japanese  authori- 
ties. The  following  is  the  table,  showing  the  offences  and  pun- 
ishment of  the  Russian  prisoners  of  war: 


CHAP.  II.,  SECT.  X.J 

PRISONERS 

OFFENCES 

1 

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132  LAWS   OF  LAND   WARFARE.  [PART   II. 


Sect.  XI.    The  Sick  and  Wounded. 

The  Japanese  Government  was  so  careful  of  its  obligation 
to  receive  and  care  for  the  sick  and  wounded  among  the  Rus- 
sian prisoners,  in  strict  conformity  to  Art.  VI.  of  the  Red 
Cross  Convention,  that  those  who  were  slightly  wounded  were 
sent  back  to  the  interior  of  Japan  by  military  hospital  ships 
or  the  hospital  ships  belonging  to  the  Red  Cross  Society,  and 
those  severely  wounded  were  treated  until  it  was  possible  to 
send  them  to  Japan  in  safety.  In  all  of  these  cases  Japan 
never  made  any  distinction  between  her  own  soldiers  and  those 
of  Russia. 

At  the  surrender  of  Port  Arthur  the  Japanese  Army  re- 
ceived many  sick  and  wounded  Russian  prisoners.  For  their 
accommodation  many  new  temporary  hospitals  were  opened, 
and  besides  the  already  established  hospitals  belonging  to  the 
Russian  Army,  Navy,  and  the  Red  Cross  Society,  the  Japa- 
nese Government  received  and  treated  them  in  nineteen  hospi- 
tals. After  the  advancement  of  the  Third  Army  northward, 
145  physicians  and  pharmacists  belonging  to  the  Liangtung 
Garrison  Army  and  the  Japanese  Red  Cross  Society  and  1088 
nurses  laboured  earnestly  for  their  medical  treatment  and  care, 
assisted  by  136  Russian  physicians  and  pharmacists  who  be- 
longed to  the  Russian  Army  and  Navy,  and  the  Red  Cross 
Society,  and  2790  sick  nurses,  female  sick  nurses,  and  chap- 
lains. 

At  the  time  of  the  surrender  of  Port  Arthur  17,000  Rus- 
sian sick  and  wounded  came  into  the  hands  of  the  Japanese 
for  treatment.  Although  their  language  and  customs  were 
different  from  those  of  Japan,  they  were  abundantly  satisfied 
with  the  treatment  of  the  Japanese,  who  did  their  best  in  nurs- 
ing them. 

Mr.  Barashoff,  the  President  of  the  Committee  of  Russian 
Red  Cross  Society  at  Port  Arthur,  pronounced  the  treatment 
of  the  Russian  sick  and  wounded  by  the  Japanese  Imperial 
Medical  Staff  to  be  perfect,  and  said  that  their  management 


CHAF.  II. ,  SECT.  XI.]      SICK  AND   WOUNDED.  133 

of  business  was  as  careful  and  clever  as  their  medical  practice 
was  skilful.  The  1700  Eussian  sick  and  wounded  were  well 
enough  in  a  few  months  to  be  sent  to  Japan,  so  that  when  Mr. 
Barashoff  left  Port  Arthur  he  sent  a  letter  of  thanks  to  General 
Ijichi,  the  commander  of  the  fortress. 

The  Imperial  Navy  received  several  wounded  prisoners  in 
the  Naval  Hospitals,  and  treated  them  medically  without  mak- 
ing any  distinction  between  them  and  her  own  men.  In  1904 
there  were  only  18  prisoners  who  were  under  the  care  of  Sasebo 
Naval  Hospital.  On  May  27  and  28,  1905,  the  famous  Japan 
Sea  fight  took  place.  After  this  battle  the  Russian  sick  and 
wounded  who  were  received  by  the  Sasebo  Naval  Hospital,  the 
Maizuru  Naval  Hospital,  the  Tsushima  Defence  Detachment 
Hospital,  and  the  Hamada  Military  Hospital,  were  over  338  in 
number.  On  the  other  hand,  there  were  726  wounded  in  1904 
and  6790  in  1905  among  the  prisoners  who  were  interned  in 
the  prison  barracks,  and  many  sick  as  well.  Thereupon,  the 
Art.  XII.  of  Minutiae  of  Rules  of  the  Prisoners'  Treatment 
provided  that  the  prison  barrack  can,  if  necessary,  have  a  hos- 
pital chamber,  providing  sanitary  materials,  clothes,  beds,  and 
furniture  equal  to  the  military  hospitals,  and  accordingly  hos- 
pitals were  opened  in  prison  barracks  at  Matsuyama,  Hamadera, 
and  Narashino,  so  that  prisoners  who  were  sick  and  wounded 
could  be  sent  immediately  from  the  battle-field  to  the  barracks, 
where  they  could  be  taken  to  the  hospital.  In  one  case  there 
was  an  epidemic,  and  the  patients  were  taken  to  the  Military 
Preparatory  Hospitals  to  receive  the  same  kind  of  medical 
treatment  as  the  patients  of  the  Japanese  army,  according  to 
Art.  XIII.  of  the  same  Minutiae. 

Prisoners  had  especially  good  care  because  the  prison  bar- 
rack, following  Art.  XIV.  of  the  Minutiae,  not  only  employed 
the  regular  military  surgeons  attached  to  the  garrison,  but  also 
caused  the  sick  and  wounded  among  the  prisoners  to  be  treated 
by  the  surgeons  and  doctors  of  the  Red  Cross  Society  who 
were  under  the  superintendence  of  the  regular  military  sur- 
geon.    Thus  prisoners  enjoyed  the  most  improved  medical  and 


134  LAWS   OF   LAND   WARFARE.  [PART   II. 

surgical  treatment,  and  were  given  the  care  of  faithful  male 
and  female  nurses. 

There  were  79,817  Russian  sick  who  were  treated  medically 
in  the  military  and  naval  hospitals  and  the  hospitals  connected 
with  the  prison  barrack,  and  there  were  77,494  patients  who 
were  restored  to  health.  (See  the  Table  No.  III.)  Deceased 
numbered  373.  Sick  and  wounded  prisoners  who  on  recovering 
were  deemed  incapable  of  further  military  service  were  not 
interned  with  the  others,  but  the  Japanese  Government,  con- 
forming to  Paragraph  2  of  Art.  VI.  of  the  Red  Cross  Con- 
vention released  and  sent  back  all  of  those  who  were  considered 
incapable  of  further  military  service,  with  the  exception  of 
some  who  could  serve  their  country  with  their  mental  powers, 
requiring  of  those  sent  that  they  do  not  take  the  arms  again 
during  the  war,  as  in  the  Art.  XXIII. 

The  Russian  sick  and  wounded  who  became  prisoners  at 
the  surrender  of  Port  Arthur  were  4319  in  number,  3438  being 
military  officers  and  soldiers  and  601  being  naval  officers  and 
sailors. 

Seventeen  voyages  were  made  from  Port  Arthur  to  Chefoo 
from  March  5  to  May  22,  1905,  to  deliver  the  men  and  Rus- 
sian medical  attendants  into  the  charge  of  the  Russian  Consul 
at  Chefoo.  The  returning  of  permanently  disabled  Russian 
prisoners  from  the  interior  of  Japan  began  October  23,  1904. 
There  was  an  old  paymaster,  12  petty  officers  and  soldiers,  and 
34  medical  members.  They  were  delivered  to  the  French  Con- 
sul at  Kobe,  and  the  total  number  of  prisoners  sent  back  at  the 
eight  different  times  is  shown  in  the  annexed  Table  No.  I.  It 
is  noteworthy  that  all  Russian  prisoners  who  lost  eyes  or  limbs 
in  the  field  of  battle  were  given  artificial  members  through  the 
charity  of  Her  Majesty  the  Japanese  Empress,  as  shown  in 
annexed  Table  No.  II. 

Among  many  Russian  prisoners  there  was  one  military 
officer  and  123  petty  military  officers  and  soldiers  and  9  petty 
naval  officers  and  marines  who  received  artificial  limbs,  and 
one  military  and  one  naval  officer,   17  petty  military  officers 


CHAP.  II.,  SECT.  XI.]      SICK   AND   WOUNDED.  135 

and  soldiers  and  two  petty  naval  officers  who  received  artificial 
eyes. 

Fourteen  hundred  and  fifty-three  Kussians  who  died  in 
Field  Hospitals,  Hospitals  at  Port  Arthur,  or  prison  barracks 
or  during  the  journey  to  the  interior,  were  buried,  following 
the  Arts.  XXVI.  and  XXVIII.  of  Minute.  In  the  field  the 
Japanese  authorities  paid  due  regard  to  their  rank  and  grade  in 
burying  the  dead,  and  made  Buddhist  priests  attached  to  the 
army  perform  their  religious  ceremonies.  In  the  interior  they 
had  the  pastors  of  Eussian  Catholic  Churches  perform  their 
religious  rites,  and  buried  the  dead  in  the  Military  Burial-place, 
and  where  it  was  found  to  be  narrow,  they  selected  some  other 
suitable  place.  The  wills  of  prisoners  were  received  and  drawn 
up  on  the  same  conditions  as  for  soldiers  of  the  national  army, 
as  the  Art.  XIX.  of  The  Hague  Convention  dictates,  yet  the 
Japanese  allowed  them  to  make  the  wills  according  to  the 
effectual  forms  in  their  own  country,  if  it  was  their  desire. 
Conforming  to  the  Art.  XXXI.  of  the  Minutiae,  these  wills, 
with  bequests,  were  sent  to  the  Information  Bureau.  If  the 
Articles  bequeathed  were  very  hard  to  preserve,  then  the  Japa- 
nese changed  them  to  money  by  selling  them,  and  sent  the 
money  to  the  Information  Bureau.  The  Information  Bureau 
sent  these  wills,  bequests,  or  money  to  the  French  authorities, 
who  sent  them  to  the  families  or  relatives  of  the  deceased  per- 
sons. 

I.  Table  on  next  page  shows  prisoners  who  were  delivered 
to  French  Consul  at  Kobe  for  the  reason  that  they  were  in- 
capable of  serving  though  recovered,  or  who  were  discovered  to 
be  members  in  the  medical  service  after  being  received. 


136 


LAWS   OF   LAND   WARFARE. 


[PART   II. 


Grade. 

Released 

Oct.  23, 

1904. 

Released 

Feb.  24, 

1905. 

Released 

April  22, 

1905. 

Total. 

Paymaster 

1 
3 
1 
1 
20 
9 

1 

Military  or  Naval  Physician 

One  who  takes  charge  of  Physician . 
Pharmacist 

4 

3 

4 

10 
5 
1 

Chief  of  Sick  Nurses 

12 

68 

100 
9 

Sick  Nurses 

Members  in  Medical  Service 

68 
1 
1 

1 
..... 

68 

Civil  Officers 

1 

Benevolent  Sick  Nurses 

1 

Soldiers 

12 

.5 

5 

1 
1 

17 
6 

Soldiers  under  one's  personal  com- 
mand   

Missionaries 

1 

Servant 

1 

Merchant 

1 

6 

6 

Total 

47 

34 

147 

228 

Kemarks.  Eussian  members  in  medical  service  were  never 
treated  as  prisoners  by  the  Japanese  authorities,  but  those  who 
were  captured  on  the  battle-field  and  could  not  be  sent  back 
to  the  outposts  of  the  Eussian  Army  were  sent  into  the  interior 
of  Japan  and  were  released  there. 

II.  A  table  showing  the  number  of  Eussian  prisoners  who 
were  given  artificial  limbs  and  eyes  by  H.  I.  J.  M.  the  Empress : 


Artificial  Limbs. 

Artificial  Eyes. 

Grade 

Army. 

Navy. 

03 

a 
1 

Army. 

Navy. 

i 
1 

Rank ■ 

i 

6 

O 

i 

o 

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■ 

o 

i 

£ 

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a 

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racks. 

Sendai 

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l 

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1 

11 

1 

Hamadera . . . 
Fushimi 

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3 

14 

.... 

1 

.... 

22 

1 

Matsuyama . . 
Zentsfi-ji  .... 

72 
19 
21 

3 
1 
2 

75 
20 
24 

1 

9 

86 
20 

Fukuoka  .... 

1 

24 

Total.  .  . 

1 

123 

9 

133 

1 

17 

l 

2 

21 

154 

CHAP.  II.,  SECT.  XI.]      SICK  AND   WOUNDED. 


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138  LAWS   OF   LAND   WARFARE.  [PART    II. 


Sect.  XII.     Crews  of  Merchantmen. 

The  question  "  who  may  be  prisoners  "  may  be  decided  by 
the  First  and  Second  Hague  Conventions.     Art.  III.  says: 

The  military  forces  of  the  belligerent  parties  may  be 
composed  of  combatants  and  non-combatants.  In  case  of  cap- 
ture by  the  enemy  both  shall  be  entitled  to  be  treated  as  pris- 
oners of  war. 

By  Art.  XIII.  the  following  persons  may  be  prisoners  un- 
der certain  conditions  also. 

Individuals  who  accompany  an  army  without  forming  an 
integral  part  of  it,  such  as  correspondents  and  reporters  of 
newspapers,  sutlers  and  contractors,  who  fall  into  the  hands 
of  the  enemy,  and  whom  the  latter  deem  it  expedient  to  de- 
tain, are  entitled  to  be  treated  as  prisoners  of  war,  on  condi- 
tion that  they  are  provided  with  certificates  of  identity  by  the 
military  authorities  of  the  army  which  they  accompany. 

Generally  speaking,  it  is  clear  from  the  rules  of  Interna- 
tional Law  that  sovereigns  and  their  families,  who  have  most 
important  relations  with  the  state  business,  may  be  treated  as 
prisoners,  but  it  is  a  question  whether  sailors  of  merchantmen 
may  be  prisoners  or  not. 

Conforming  to  the  opinions  of  many  publicists,  there  is  no 
objection  theoretically  for  treating  sailors  of  merchantmen  as 
prisoners,  and  practices  agree  in  several  cases. 

During  the  Eusso-Japanese  war,  Japan  was  more  liberal 
than  Eussia.  Only  crews  of  merchantmen  who  formerly  served 
in  the  navy  were  treated  as  prisoners,  and  others  were  released. 
On  the  21st  of  Feb.,  1904,  the  Japanese  Minister  of  Navy  gave 
instructions  to  the  Commander  of  the  Sasebo  Naval  station 
that  when  Eussian  vessels  were  confiscated  as  rightful  prizes 
at  Prize  Court,  their  masters  and  crews  may  be  released  on 
parole  not  to  serve  again  during  the  same  war,  and  they  may 
be  given  passage  from  Nagasaki  to  Shanghai,  if  they  want  it, 
in  all  cases  except  contraband  persons  and  those  whom  it  was 
considered  to  be  necessary  to  intern. 


CHAP.  II.,  SECT.  XII.]      CREWS   OF   MERCHANTMEN. 


139 


To  put  this  instruction  into  practice  the  following  rules 
were  issued: 

1.  Those  crews  who  have  their  nationalities  in  neutral  states  may 
be  delivered  with  their  name  lists  to  consuls  of  their  own  country. 

This  list  must  be  sent  for  the  information  of  consul   previously. 

2.  Those  who  have  their  nationalities  in  neutral  states  but  have 
no  consuls  at  Nagasaki,  or  whose  consuls  refuse  to  receive  them,  may 
be  released  immediately. 

3.  Japanese  may  be  released  immediately. 

4.  Russians  may  be  delivered  to  French  Consul  at  Nagasaki,  but 
if  consul  does  not  choose  to  receive  them,  they  may  be  released  on 
condition  that  they  will  leave  Japan  by  the  mail  steamers  as  quickly 
as  possible. 

5.  If  there  are  some  whom  their  consuls  at  Nagasaki  do  not 
choose  to  receive  and  who  have  not  money  necessary  to  leave  Japan, 
give  them  the  free  passage  from  Nagasaki  to  Shanghai. 


NUMBERS   OF   RELEASED  CREWS   OF   CAPTURED   RUSSIAN 

VESSELS. 


Name  of  Ship. 

Rus- 
sians. 

Chinese. 

Ger- 
mans. 

Norwe- 
gians and 
Danes. 

Koreans. 

Japa- 
nese. 

Total. 

Ekaterinoslav . . 

107  l 

29 
35  2 

27 

15 

12 

4 

1 

0 

21 

39 

0 

6 

84 

1 

1 

107 

Mukden 

1 

"2  " 

51 

Argun 

Manchuria 

76 

"s" 

1 

1 

28 

Russia 

22 

Mihail 

Alexandor 

1 
1 

7 

12 
1 

114 

7 

Nikolai   . 

9 

Total 

230 

152 

5 

2 

10 

15 

414 

Among  them  sick,  26. 


2  Among  them  sick,  3. 


Japan  captured  Russian  merchantmen,  but  did  not  destroy 
a  single  vessel.  Contrary  to  this,  Russians  sank  all  Japanese 
merchantmen  they  saw,  and  few  were  captured.  The  crew  on 
board  of  vessels  they  sank,  were  treated  as  prisoners.  Those  so 
treated  were  the  Hanyei  Maru,  the  Kinshu  Maru,  the  Izumi 
Maru,  the  Hitachi  Maru,  and  the  Sa do  Maru.  The  S.  S. 
Haginoura  Maru  was  a  common  merchantman,  but  its  crew 
was  not  released.     In  March  27,  1905,  the  Japanese  Govern- 


140  LAWS  OF  LAND  WARFARE.  [PART  II. 

ment  entered  into  negotiation  with  the  United  States  on  the 
ground  that  among  295  Japanese  non-combatants  interned  as 
prisoners  in  Russia  there  were  sick  nurses  and  merchants  who 
could  not  be  treated  as  prisoners  under  the  Eed  Cross  Con- 
vention and  international  practice,  so  that  they  must  be  released. 
They  further  negotiated  with  the  Government  of  the  United 
States  to  request  the  exchange  of  prisoners,  but  previous  to 
the  Eussians  carrying  out  this  request  peace  was  restored. 

In  theory,  a  calm  criticism  of  these  facts  reveals  no  reason 
to  blame  Russia,  but  in  comparison  with  the  more  liberal  con- 
duct of  Japan  they  cannot  escape  accusation  of  cruelty. 

The  author  of  this  work  is  very  glad  to  see  the  Second 
Hague  conference  passed  the  following  regulations,  as  he  ex- 
pected : 

Regulations  Regarding  the  Crews  of  Enemy  Merchant  Ships  Captured 

by  a  Belligerent. 

Art.  V.  When  an  enemy  merchant  ship  is  captured  by  a  belligerent, 
such  of  its  crew  as  are  nationals  of  a  neutral  state  are  not  made  pris- 
oners of  war. 

The  same  rule  applies  in  the  case  of  the  captain  and  officers,  like- 
wise nationals  of  a  neutral  state,  if  they  promise  formally  in  writing 
not  to  serve  on  an  enemy  ship  while  the  war  lasts. 

Art.  VI.  The  captain,  officers,  and  members  of  the  crew,  when 
nationals  of  the  enemy  state,  are  not  made  prisoners  of  war,  on  con- 
dition that  they  make  a  formal  promise  in  writing  not  to  undertake, 
while  hostilities  last,  any  service  connected  with  the  operations  of  the 
war. 

Art.  VII.  The  names  of  the  persons  retaining  their  liberty  under 
the  conditions  laid  down  in  Art.  V.,  paragraph  2,  and  in  Art.  VI.,  are 
communicated  by  the  belligerent  captor  to  the  other  belligerent.  The 
latter  is  forbidden  knowingly  to  employ  the  said  persons. 

Sect.  XIII.  Russians  in  Medical  Service,  Non-Combatants 
and  Deceased. 

Russians  in  medical  service,  who  were  captured  by  our  mil- 
itary or  navy,  number  over  4549.  They  were  never  treated  as 
prisoners.  At  the  time  of  surrender  of  Port  Arthur,  there 
were  214  officers,  2361  petty  officers  and  soldiers,  and  215 
female  sick  nurses  and  others.     After   the  capitulation,  they 


CHAP.  II.,  SECT.  XIII.]      RELEASED   RUSSIANS.  141 

engaged  in  medical  treatment  or  in  the  care  of  Eussian  pris- 
oners, sick  and  wounded  in  the  hospital  of  Port  Arthur,  as 
Art.  IX.  of  Surrender  Convention  dictates,  but  upon  sending 
the  prisoners  to  the  interior,  it  ceased  to  be  necessary  for  them 
to  stay  there,  and  later  37  officers  and  27  priests  and  others 
returned  home  via  Nagasaki.  On  March  1,  3,  and  4,  1905, 
360  medical  men  returned  home  from  Chefoo,  whither  they 
were  sent  by  the  Japanese  Government,  and  the  remaining 
2366  members  of  the  Eussian  medical  staff  also  returned  from 
Chefoo  where,  along  with  the  permanently  disabled  Eussian 
soldiers  and  sailors,  they  had  been  delivered  to  the  Eussian 
Consul.  Besides,  there  were  many  Eussian  military  surgeons, 
those  belonging  to  the  Eussian  Eed  Cross  Society,  Eussian  Field 
Hospitals  and  Ambulances,  crew  of  Hospital  ships,  and  chap- 
lains whom  the  Japanese  Imperial  Government  released  as  soon 
as  possible. 

There  being  a  military  surgeon  who  was  captured  at  the 
field  of  Kiu-lien-cheng  on  May  1,  1904,  and  who  was  desirous 
of  treating  and  caring  for  wounded  prisoners  in  Japan,  the 
Japanese  authorities  sent  him  back  to  Japan  with  6  sick  nurses 
whose  rank  was  not  clear.  Many  were  released  and  sent  home 
as  soon  as  they  were  discovered  to  be  members  of  medical  corps 
when  they  were  brought  to  Japan.  These  were  released  and 
returned  home  from  Kobe,  the  number  being  833.  Members 
of  the  medical  corps  were  sent  back  to  the  interior  at  their 
own  request  or  strategetically.  They  were  never  interned  in 
the  prison  barracks,  but  were  lodged  in  Military  Hospitals, 
treated  equally  with  Japanese  medical  members,  and  restricted 
only  in  the  examination  of  their  correspondence.  On  May  22, 
1904,  the  Japanese  Minister  of  War  ordered  Chiefs  of  Legions 
to  give  provisions,  furniture,  and  tools  to  Eussian  medical 
corps  according  to  their  grades,  and  to  allow  them  to  go  out 
freely  or  to  reside  in  town.  Of  course,  owing  to  the  difference 
of  language  and  customs,  they  felt  it  inconvenient  to  reside  in 
citizens'  houses  and  lodged  in  hospitals. 

On  October  23,  1904,  a  Eussian  surgeon,  Caesar  Suveoff, 


142  LAWS   OF   LAND   WARFARE.  [PART   II. 

whose  rank  corresponds  to  Colonel,  and  34  Kussian  medical 
men  were  delivered  with  12  prisoners  incapable  of  serving  and 
an  aged  paymaster  on  the  Kussian  cruised  Lurick. 

In  connection  with  the  description  of  the  release  of  prison- 
ers, the  following  is  added: 

Application  for  Discharge  of  Russian  Officers  Who  Missed 
the  Opportunity  of  Taking  Parole  at  Port  Arthur. 

There  were  not  a  few  Kussian  Officers  who  declined  to  take 
a  parole  at  the  time  of  the  surrender  of  Port  Arthur.  But 
they  now  requested  to  be  released  on  parole,  having  felt  some 
inconveniences  since  their  arrival  at  Japan. 

On  the  21st  of  April,  1905,  eight  Russian  officers  sent  in  a 
formal  application  for  release  through  the  French  Minister,  and 
the  Japanese  Government  replied  in  the  following  sense: 

Those  prisoners  who  had  hesitated  to  take  a  parole  at  the  time 
of  surrender  of  Port  Arthur  were  specially  given  time  for  consid- 
eration by  allowing  them  to  perform  it  at  Tailenwan,  where  on  ar- 
rival of  prisoners  from  Port  Arthur,  the  taking  of  parole  was  granted 
every  day  to  those  who  wanted  it.  Such  being  the  circumstances, 
any  application  made  by  those  who  did  not  take  advantage  of  that 
special  opportunity,  oannot  be  granted  now. 

Sect.  XIV.     Delivering  of  Prisoners  of  War. 

On  the  18th  of  Sept.,  1905,  the  Japanese  Government  re- 
quested the  United  States  to  communicate  with  the  Russian 
Government  with  regard  to  the  delivering  of  prisoners  of  war. 
The  Japanese  proposal  was  as  follows: 

After  the  ratification  of  the  Treaty  of  Peace,  our  Govern- 
ment wants  to  receive  the  Japanese  prisoners  and  other  captives 
in  Russia  at  the  western  frontier  of  that  country,  and  to  de- 
liver the  Russian  prisoners  and  other  captives  in  Japan  at  the 
i:hree  ports  of  Nagasaki,  Kobe,  and  Yokohama. 

On  the  3rd  of  Sept.,  the  State  Department  informed  the 
Japanese  Minister  that  the  Russian  Government  entirely 
shared  view  of  Japanese   Government  for  acceleration  of  the 


CHAP.  II.,  SECT.  XIV.]      DELIVERING   OF  PRISONERS.  143 

preparation  for  the  delivery  and  accepted  the  proposition  for 
the  giving  back  of  the  Japanese  prisoners  on  the  western  fron- 
tier of  the  Empire  and  for  receiving  Kussian  prisoners  at 
Nagasaki,  Kobe,  and  Yokohama  as  soon  as  preparations  were 
made,  and  that  the  Kussian  Government  would  immediately 
communicate  the  Japanese  Government  through  the  usual 
diplomatic  channel. 

The  following  was  a  proposal  of  the  Japanese  War  Depart- 
ment regarding  the  delivery  of  prisoners: 

Tokyo,  6th  October,  1905. 
Your  Excellency: 

I  beg  to  propose  the  following  rules  for  the  delivery  and  receiving 
of  prisoners  of  war  and  other  captives  to  be  carried  out  between  Japan 
and  Russia  after  the  ratification  of  the  Treaty  of  Peace,  and  want  to 
be  informed  of  your  opinion  on  the  same. 

Yours  respectfully, 

(Signed)     S.  Teraucui, 
Minister  for  War. 
His  Excellency  Count  Katsura, 
Minister  for  Foreign  Affairs. 

In  case  Foot  Colonel  Kikutaro  Oi,  at  Berlin,  is  appointed  Special 
Delegate,  in  accordance  with  clause  1  of  the  following  rules,  you  will 
please  see  that  the  staff  of  the  Imperial  Japanese  Legation  and  Con- 
sulate at  that  place  shall  give  the  necessary  assistance  to  the  Colonel. 

Rules. 

1.  For  receiving  the  Japanese  prisoners  of  war  and  other  captives 
in  Russia,  the  Japanese  Government  will  appoint  Foot  Colonel  Kiku- 
taro Oi,  Military  Attache"  to  the  Japanese  Legation  at  Berlin,  a  Special 
Delegate,  who  will  take  charge  of  all  the  affairs. 

2.  Those  Japanese  prisoners  of  war  and  other  captives  received  from 
Russia  shall  be  shipped  at  Hamburg  or  Bremen,  Germany,  by  mer- 
chant steamers  chartered  at  those  ports,  and  be  brought  to  the  port 
of  Kobe  under  the  superintendence  of  the  highest  senior  officer  among 
the  prisoners. 

3.  If  there  be  any  among  those  returning  from  Russia  who  want 
to  remain  in  Europe  at  their  own  expenses,  but  who  are  not  soldiers  or 
their  attendants,  the  Special  Delegate  shall  decide  the  application  by 
consulting  with  the  Minister  or  Consul. 

4.  The  expenses  to  be  borne  by  the  government  for  sending  back 
the  Japanese  prisoners  of  war  and  other  captives  shall  be  the  actual 
amount  disbursed.     A  cashier  shall  be  appointed  from  among  the  pris- 


144  LAWS  OF  LAND  WARFARE.  [PART  II. 

oners,  and  the  War  Department  shall  give  him  an  advance  of  money  in 
rough  estimate,  which  shall  be  settled  after  their  return  to  Japan. 

5.  When  the  Japanese  prisoners  of  war  and  other  captives  arrive 
at  the  port  of  Kobe,  those  belonging  to  the  War  Department  and  those 
belonging  to  the  Navy  Department  shall  be  received  by  their  respective 
Departments,  while  the  others  shall  be  allowed  to  go  away  as  they  like. 

6.  As  to  the  delivery  of  the  Russian  prisoners  of  war  and  other 
captives  in  Japan,  the  Bureau  of  Information  shall  take  charge;  and 
those  detained  in  Shizuoka  and  the  east  shall  be  delivered  at  Yoko- 
hama; those  in  Yamaguchi  and  the  west,  at  Nagasaki;  and  those  in 
other  places,  at  Kobe,  all  to  the  Russian  Special  Delegate  or  his  agent. 

7.  Out  of  the  Russian  prisoners  and  other  captives,  those  who  can- 
not be  transported  on  account  of  wounds  or  illness  shall  be  delivered 
to  the  Russian  Special  Delegate  or  his  agent  at  the  hospitals  of  the 
Prison  Barracks,  or  the  military  or  naval  hospitals,  after  the  general 
delivery  shall  have  been  completed. 

8.  The  dates  and  other  particulars  of  delivering  the  Russian  pris- 
oners of  war  and  other  captives  to  the  Russian  Government  shall  be 
arranged  between  the  Director  of  the  Bureau  of  Information  and  the 
Russian  Special  Delegate  or  his  agent. 

The  proposal  of  the  Russian  Government  was  as  follows: 

French  Minister  to  Count  Kateura. 

Legation  de  la  Republique  Franchise  au  Japon. 

Tokyo,  le  9  Octobre,  1905. 

MONSIETJE   LE    COMTE  : 

Le  Gouvernement  Russe  me  prie  de  faire  savoir  a  Votre  Excel- 
lence qu'il  considere  Wirballen  comme  le  point  frontiere  le  plus  pre- 
cise au  transfert  des  prisonniers  de  guerre  Japonais  qui  sont  en  Russe 
au  nombre  de  1866  dont  99  sont  officiers. 

Je  serais  reconnaissant  a  Votre  Excellence  de  me  faire  connaltre  si 
le  Gouvernement  Imperial  donne  son  approbation  au  choix  de  Wir- 
ballen, propose  par  le  Gouvernement  Russe  a  cet  effet. 

D 'autre  part,  ce  dernier  m'a  fait  exprimer  le  desir  de  connaitre 
le  nombre  exact  des  prisonniers  de  guerre  Russes,  detenus  actuellement 
au  Japon,  tant  du  arm£e  de  terre  que  du  marine,  et  je  prie  Votre 
Excellence  de  vouloir  bien  me  mettre  en  mesure  de  rgpondre  a  cette 
demande. 

Venillez  agr§er,  .  .  . 

(Sign<5). 

To  this  Japan  gave  her  reply  of  agreement,  reporting  at 
the  same  time  the  number  of  the  Russian  prisoners  in  Japan. 


CHAP.  II.,  SECT.  XIV.]      DELIVERING   OF   PRISONERS.  145 

The  receipt  of  the  Japanese  prisoners  in  Eussia  was  com- 
pleted on  the  15th  December,  1905,  at  the  frontier  of  the  Rus- 
sian Empire. 

In  concluding  the  account  of  the  delivery  of  prisoners,  the 
following  statement  cannot  be  omitted: 

Summary  of  Conversation  of  General  Daniloff  about  his 
gratitude  for  the  hind  treatment  given  by  Japan  to  Russian 
prisoners. 

General  Daniloff,  of  Russia,  who  had  gone  to  Japan  to  take 
delivery  of  Russian  prisoners,  completed  his  business,  called  on 
the  Japanese  Foreign  Minister  on  the  19th  of  February,  ac- 
companied by  the  Russian  Charge  d'Affaires.  The  General 
stated  that  he  felt  an  extremely  deep  gratitude  for  the  kind 
and  cordial  treatment  given  by  the  Japanese  Government  and 
authorities  towards  the  Russian  prisoners,  as  well  as  for  the 
warm  sympathy  shown  them  by  the  Japanese  people  in  gen- 
eral. Especially  did  he  appreciate  the  kindness  of  her  Maj- 
esty, the  benevolent,  philanthropic  Empress  of  Japan,  who 
had  been  so  gracious  as  to  give  artificial  eyes  and  legs  to  the 
wounded  Russian  prisoners.  He  further  stated  that  when  he 
went  back  to  his  own  country  he  would  report  to  his  Majesty, 
the  Russian  Emperor,  the  above-mentioned  gracious  and  cordial 
treatment  shown  to  his  countrymen.  The  Foreign  Minister 
replied  that  the  Japanese  authorities  had  tried  their  utmost 
to  give  to  the  prisoners  as  much  satisfaction  as  possible.  The 
General  then  stated  that  during  the  long  time  of  detention 
there  might  have  been  among  the  prisoners  some  who  had 
shown  insubordination  or  made  trouble,  but  that  it  must  have 
been  due  to  misunderstanding  among  the  prisoners  themselves, 
or  between  them  and  other  individuals,  it  being  beyond  ques- 
tion that  the  measures  taken  by  the  Japanese  authorities  had 
been  as  liberal  and  as  kind  as  could  be  desired,  for  which  he 
wanted  to  express  his  heartfelt  thanks  repeatedly. 

General  Terauchi,  the  Minister  of  the  Army,  and  Admiral 
Saito,  the  Minister  of  the  Navy,  to  Marquis  Saionji,  then  Min- 
ister for  Foreign  Affairs. 


146  LAWS   OF   LAND   WARFARE.  [PART   II. 

They  said  that  since  the  outbreak  of  the  war  the  United 
States  Embassy  in  Kussia  had  taken  much  trouble  and  had 
done  much  to  assist  us  in  the  superintendency  and  other  busi- 
ness connected  with  the  Japanese  prisoners  of  war  and  other 
captives  in  Kussia.  It  was  especially  so  with  Mr.  Thomas 
Smith,  the  United  States  Consul,  who  was  in  direct  charge 
of  that  business,  and  who  also  rendered  not  a  small  service  for 
the  interests  of  Japanese  prisoners  and  other  captives. 

That  the  German  Red  Cross  Society,  as  well  as  several  other 
sympathising  bodies,  organised  to  entertain  the  Japanese  pris- 
oners showed  a  special  kindness  and  good-will  on  their  way 
home,  and  that  they  express  their  thanks  to  the  above-referred- 
to  benefactors  to  be  conveyed  through  the  proper  channel. 

Sect.  XV.     Prisoners  and  Religion. 

Art.  XVIII.  of  the  First  and  Second  Hague  Conventions 
says: 

Every  latitude  shall  be  allowed  to  prisoners  of  war  for  the  free 
exercise  of  religious  belief,  in  which  shall  be  included  the  right  to 
attend  religious  service,  upon  the  single  condition  that  they  conform 
to  the  measures  of  discipline  and  police  prescribed  by  the  proper  mili- 
tary authority. 

During  the  war  various  means  were  taken  by  Japan  in  order 
to  give  mental  and  spiritual  consolation  to  the  prisoners. 
Newspapers  and  magazines  were  furnished,  and  several  imple- 
ments of  sport  were  provided  in  the  barracks.  But  the  thing 
on  which  most  importance  was  placed  was  to  lighten  their 
hearts  by  religion,  and  accordingly  separate  chapels  were  erected 
for  the  Eoman  Catholic  sect,  Greek  sect,  Mahometan  sect,  and 
Jewish  sect.  Those  who  worked  most  in  religious  matters  were 
Bishop  Nicolai  and  his  missionaries,  and  it  was  at  the  begin- 
ning of  May,  1904,  that  the  "  Prisoners'  Eeligious  Consolation 
Association "  was  organized  within  the  Nicolai  Missionary 
School  under  the  support  of  several  influential  men,  such  as 
Saburo  Shimada,  Seijiro  Niwa,  and  Soroku  Ebara.     The  asso- 


CHAP.  II.,  SECT.  XV.J      PRISONERS   AND   RELIGION.  147 

ciation  then  sent  in  to  the  Home  Department  an  application 
for  a  permit  to  despatch  missionaries  to  the  prison  barracks; 
and  consequently  Messrs.  Suzuki,  Sawabe,  Morita,  Ishikawa, 
Horie,  Chiba,  Senuma,  and  Yamada  were  despatched  on  the 
sacred  mission. 

The  way  in  which  Bishop  Nicolai  exerted  himself  to  in- 
spire, cheer  and  comfort  the  hearts  of  his  unfortunate  country- 
men is  worthy  of  all  praise,  and  the  impartial  and  liberal  way 
in  which  not  only  Bishop  Nicolai,  but  other  religionists  were 
allowed  to  perform  their  charitable  work  may  be  taken  as  an 
expression  of  the  habitual  attitude  of  the  Japanese  Government 
in  such  matters. 


CHAPTER    III. 
THE    TREATMENT    OF    THE    KILLED. 

Nobody  can  possibly  bear  any  suspicion  as  regards  to  Japan's 
perfect  conformity  to  stipulations  of  International  Law  con- 
cerning the  treatment  of  the  sick,  wounded,  and  killed,  and 
her  pride  is  that  her  strict  observance  of  various  public  stipula- 
tions, such  as  those  of  the  Geneva  Convention,  or  of  The 
Hague  Convention,  with  the  application  of  the  Geneva  Con- 
vention to  maritime  warfare,  was  an  outburst  purely  of  Ja- 
pan's chivalrous  national  spirit,  without  the  least  outward  con- 
straint. 

The  author  quotes  below  Baron  Suyematsu's  article  con- 
tributed to  the  January  number  of  La  Revue,  1905,  which  most 
felicitously  anticipated  the  author's  opinion: 

After  a  battle,  "  sweeping "  companies  are  at  once  told  off  to  the 
duty  of  bringing  in  the  wounded,  friend  or  foe,  and  carrying  them 
to  the  nearest  surgical  station  or  field  hospital.  The  dead  are  brought 
to  convenient  spots,  though  care  is  taken  to  avoid  an  unseemly  mingling 
of  the  bodies,  and  it  is  expressly  enjoined  on  all  that  the  dead  shall 
be  reverently  handled,  friend  and  foe  alike,  though  deposited  apart  to 
avoid  confusion,  and  all  respect  shown  to  the  apparent  rank  of  the 
deceased,  to  whichever  side  he  may  have  belonged;  for  he  shed  his 
blood  in  his  country's  cause,  and  earthly  animosities  vanish  with  the 
passage  beyond  the  veil. 

So  far  as  it  is  practicable  or  possible  to  do  so,  the  name,  rank, 
office,  and  regiment  to  which  he  belonged,  is  ascertained  and  recorded 
for  reference  in  the  case  of  every  dead  soldier,  friend  or  foe,  and  all 
bodies  are  reverently  covered  by  suitable  matting  or  other  coverings. 

The  places  chosen  for  interment  of  the  dead  are  to  be  at  a  dis- 
tance from  high  roads,  towns,  villages,  or  camps — well  away  from 
watercourses  or  wells,  on  elevated  sites,  or  on  slopes  where  the  soil 
is  dry. 

148 


CHAP.  III.]  TREATMENT   OF   KILLED.  149 

Officers  are  buried  in  separate  graves:  the  common  soldiers  may 
be  separately  interred,  or  in  numbers  not  exceeding  fifty  in  one  grave, 
as  circumstances  may  permit,  dependent  upon  the  exigencies  of  the 
campaign.  It  is  enjoined  that  the  excavations  must  be  deep,  never  less 
than  one  metre  between  the  surface  and  the  body  laid,  and  that  straw 
or  boughs  of  trees  or  shrubs  shall  be  plentifully  strewn  beneath,  and 
lime,  coke,  or  some  such  substance  placed  above,  mounds  being  raised 
over  all  with  the  soil  extracted  in  digging  the  grave.  A  suitably  in- 
scribed pillar,  or  other  mark,  is  planted  by  the  tomb. 

According  to  the  rank  and  position  of  the  dead,  the  interment  shall 
be  attended  as  far  as  may  be  feasible  with  due  honour,  and  when- 
ever priests  are  available  they  shall  be  invited  to  perform  religious 
rites  at  the  graveside.  This  applies  to  ministers  of  the  Christian 
faith,  should  they  be  at  hand,  and  to  both  Russian  and  Japanese 
dead. 

Anything  belonging  to  the  dead — excepting  firearms,  horses,  maps, 
or  military  books  and  documents — shall  be  sent  to  the  Prisoners'  In- 
telligence Board,  with  full  descriptions  of  the  original  owners. 

It  has  been  made  the  subject  of  special  and  almost  surprised  com- 
ment in  an  English  journal  that  the  French  Embassy  in  St.  Peters- 
burg should  have  been  able  to  report  that  large  number  of  packages 
are  regularly  being  received  from  Japan,  enclosing  articles  found  on 
the  bodies  of  Russian  officers  who  have  been  slain  in  battle.  Trifling 
sums  of  one  or  two  rubles  have  thus  been  forwarded,  not  to  mention 
ikons  and  much  jewellery.  (See  Part  II.,  Chapter  II.)  A  Mukden 
despatch,  received  by  Reuter's  Special  Service,  dated  the  14th  No- 
vember, quotes  the  Yestnik,  the  only  Russian  newspaper  possessing 
official  sanction  and  published  in  the  theatre  of  war,  as  bearing  strik- 
ing testimony  to  the  scrupulous  care  of  the  Japanese  for  the  relics 
and  effects  of  the  Russian  dead  found  on  the  battle-field,  and  to 
the  anxiety  shown  in  sending  such  things  to  St.  Petersburg.  The 
journal  praises  this  behaviour,  and  declares  that  General  Kuropatkin 
recommends  that  a  similar  practice  should  be  observed  towards  the 
Japanese  dead. 

"  Loot,"  it  was  remarked,  "  does  not  enter  into  the  Japanese  plan 
of  campaign."  But  in  reality  this  circumstance  should  in  no  way 
be  regarded  as  matter  for  surprise,  since  it  is  not  only  a  dastardly 
act  to  rob  the  dead  of  their  valuables,  and  a  disgrace  to  the  military 
profession,  no  matter  to  what  country  the  culprits  may  belong,  but 
those  who  might  be  disposed  so  to  degrade  themselves  are  warned  by 
the  Military  Criminal  Code,  in  the  details  of  which  the  rank  and 
file  are  carefully  instructed  in  time  of  peace,  that  such  unworthy  acts, 
and  also  any  cruel  treatment  of  a  wounded  enemy  or  prisoner,  or  any 


150  LAWS   OF   LAND   WARFARE.  [PART   II. 

insult  to  a  dead  foe,  constitute  crimes  which  deserve,  and  will  infal- 
libly receive,  the  severest  punishment. 

In  the  Japanese  field  hospitals  wounded  enemies  when  brought  in 
are  treated  with  precisely  the  same  prompitude,  cared  for  in  exactly 
the  same  way,  and  shown  in  every  respect  a  tender  kindness  equal 
to  that  meted  out  to  our  own  sufferers.  The  doctors  attend  to  the 
cases  in  regular  sequence,  without  regard  to  the  nationality  of  the 
patient,  as  has  been  reported  by  the  correspondents  of  many  European 
and  American  journals.  In  fact  the  humane  consideration  shown  to 
their  foes  by  the  Japanese  is  so  widely  known  and  appreciated  that 
it  seems  almost  superfluous  to  cite  instances  as  attested  by  European 
correspondents,  for  Russians  have  themselves  joined  in  vouching  for 
the  accuracy  of  these  assurances. 

It  is  somewhat  painful  to  be  obliged  to  reverse  the  picture  and 
show  what  is  on  the  other  side  in  regard  to  the  character  of  the  com- 
mon Russian  soldier,  and  I  shall  therefore  content  myself  with  giving 
a  brief  note  or  two  to  prove  that  a  high  standard  of  honour  cannot 
be  said  to  prevail  among  them.  In  a  recent  issue  of  a  Japanese  paper, 
the  fact  was  commented  upon  that  Russian  sailors  who  had  been  made 
prisoners  had  begged  that  their  captors  would  not  insist  on  their 
sharing  the  same  quarters  as  the  Russian  soldiers  who  were  also  cap- 
tives. The  explanation  of  this  dislike  to  be  mingled  with  their 
fellow-countrymen  was  that  the  Russian  sailor  considers  the  soldier 
very  much  beneath  himself  in  respect  of  discipline  and  personal  habits, 
so  much  so  that  it  is  impossible  for  them  to  associate  on  equal  terms. 
It  strikes  one  as  being  very  much  a  case  of  "  the  pot  calling  the  kettle 
black,"  but  their  wishes  have  been  acceded  to,  lest  disorder  should 
result.  The  other  anecdote,  the  substantial  accuracy  of  which  there 
is  no  reason  to  doubt,  comes  from  the  battle-field  itself,  where  two 
Russian  soldiers  were,  by  a  truly  remarkable  combination  of  circum- 
stances, killed  by  a  single  bullet.  One  was  in  the  act  of  robbing  the 
other!  The  hand  of  the  thief  was  in  the  pocket  of  his  wounded  and 
prostrate  comrade,  his  fingers  grasping  a  coin,  when  death  came  to 
them  both.  It  is  inconceivable  that  a  Japanese  trooper  would  seek 
to  rob  the  wounded,  dead,  or  dying,  still  less  his  fellow-countryman. 

Within  the  present  month  a  Russian  medical  officer,  Dr.  Matureef, 
who  was  captured  by  the  Japanese,  has  related  his  experiences,  and 
they  fully  bear  out  my  contention.  He  had  lost  his  way,  and  so  fell 
into  the  hands  of  the  outpost  guards.  Having  questioned  him  on  vari- 
ous points,  the  Staff  Adjutant  told  the  Doctor  that  by  the  rules  of 
the  International  Convention  he  was  free,  and  he  was  quartered  for 
the  night  at  the  building  occupied  by  the  Chief  of  Gendarmes,  given 
good    food,    and    well    looked    after.      Four    days    afterwards    he    was 


CHAP.  III.]  TREATMENT   OF   KILLED.  151 

escorted  by  two  cavalrymen  towards  the  outposts  of  the  Russian  van- 
guard, the  Japanese  doctor  of  the  cavalry  staff  thoughtfully  provid- 
ing him,  as  he  explains  in  detail,  with  chicken,  biscuits,  lemonade,  and 
cigarettes.  When  across  the  river  separating  the  two  armies  Doctor 
Matureef  was  given  a  passport,  and  a  compass  was  presented  to  him, 
so  that  he  should  have  no  difficulty  in  rejoining  the  Russian  forces, 
which  he  succeeded  in  doing  next  day. 

The  Japanese  soldier,  it  has  been  said,  makes  war  as  becomes  a 
gentleman.  It  may  not  be  quite  fitting  for  me  to  express  an  opinion, 
but  I  venture  nevertheless  to  say  that  the  commendation  thus  bestowed 
is  not  ill  deserved.  And  this  brings  me  to  the  narration  of  a  rather 
amusing  incident.  A  Russian  prisoner  was  being  conducted  by  a  young 
Japanese  soldier  to  the  Japanese  camp,  and  was  agreeably  surprised 
to  find  the  Japanese  so  kind  to  him.  In  order  to  show  his  apprecia- 
tion the  prisoner  suddenly  embraced  his  captor  and  sought  to  kiss 
him.  But  the  Japanese  trooper  had  had  no  experience  of  this  kind 
of  salutation,  and  accordingly,  fancying  that  the  Russian  intended  to 
bite  him,  he  administered  a  severe  thump  on  the  back,  and  thencefor- 
ward led  his  captive  at  arm's  length.  Presently,  on  arriving  at  the 
camp,  the  Japanese  reported  the  matter  to  his  superior  officer,  and 
the  whole  affair  was  then  explained  on  both  sides,  to  the  great  hilarity 
of  friends  and  foe.  Comical  as  was  the  incident,  it  serves  to  illus- 
trate the  temper  of  our  soldiers,  and  their  liberal  treatment  of  an 
enemy  who  may  be  at  their  mercy. 

The  truth  is  that  Japanese  soldiers  are  taught  to  be  humane,  for 
every  Japanese  child  is  brought  up  to  believe  in  kindness  to  animals, 
and  warned  that  he  must  never  be  cruel  to  any  living  thing.  The 
injunction  dates  back  to  the  days  when  the  Buddhist  faith  held  greater 
sway,  for  in  those  days  when  Buddhism  was  at  the  zenith  of  its  in- 
fluence in  Japan,  even  Imperial  decrees  were  often  issued  forbidding 
wanton  Sessho,  i.  c,  killing  the  living.  This  sentiment  seems  to  have 
been  engrafted  in  the  minds  of  the  Japanese  in  general  and  the  fact 
is  so  often  noticed  by  the  western  writers  who  visited  Japan.  But  the 
reluctance  to  take  advantage  of,  or  show  disrespect  to  fallen  or 
wounded  foe,  comes  also  from  yet  another  source,  for  in  Bushido,  or 
principles  of  Japanese  Knighthood,  of  which  something  has  been  said 
already,  compassion  for  a  beaten  or  surrendered  foe  forms  one  of 
the  most  conspicuous  features,  and  the  influence  of  Bushido  has  never 
been  better  exemplified,  perhaps,  than  in  these  modem  days  of  scientific 
slaughter. 

The  following  regulations  were  issued  by  the  Minister  of 
War,  May  30th,  1904: 


152  LAWS  OF  LAND  WARFARE.  [PART  II. 


REGULATIONS  FOR  CLEARING  THE  FIELD  AFTER  AN  EN- 
GAGEMENT AND  FOR  BURYING  THOSE  WHO  HAVE  BEEN 
KILLED   OR    HAVE    DIED   OF    DISEASE. 

{Official  Translation.) 

1.  Immediately  after  an  engagement,  each  unit  should  organise  a 
detachment  for  clearing  the  field,  for  searching  for  sick,  wounded,  and 
killed,  as  well  as  for  equipment,  etc.,  left  by  them  on  the  field. 

The  higher  commanding  officer  will  appoint  a  special  detachment  to 
carry  out  this  duty. 

2.  The  sick  and  wounded  shall  be  dealt  with  according  to  the  Field 
Regulations  of  the  Army  Medical  Service,  and  the  killed  shall  be  hon- 
oured and  respected  according  to  their  rank,  whether  they  belong  to  the 
Imperial  army  or  to  the  enemy. 

3.  As  minute  an  examination  as  possible  shall  be  made  from  the 
pocketbook,  marks  on  uniform,  identification  tally,  etc.,  as  to  the  full 
name,  rank,  position,  relatives,  and  regiment  of  any  one  found  dead. 

4.  The  corpses  of  those  belonging  to  the  Imperial  Army  shall  be 
cremated,  while  those  of  the  enemy  shall  be  interred,  except  when  con- 
tagious and  infectious  diseases  are  prevalent,  when  all  corpses,  even  those 
belonging  to  the  enemy,  shall  be  cremated. 

5.  No  burial  shall  be  made  until  death  has  been  definitely  assured. 

6.  The  Clearing  Detachment  shall  collect  separately  the  corpses  of 
both  armies,  either  in  one  place  or  in  several  places,  and  mats  or  mat- 
ting shall  be  spread  over  them.  Even  when  corpses  cannot  be  collected 
together,  steps  must  be  taken  to  cover  them. 

7.  When  the  necessary  steps  mentioned  in  clause  6  have  been  taken, 
the  corpses  shall  be  separated  into  those  belonging  to  the  Imperial  Army 
and  those  belonging  to  the  enemy,  as  soon  as  possible,  and  cremated  or 
interred  accordingly. 

8.  As  regards  the  selection  of  ground  for  interment,  the  following 
provisions  should  be  noted,  especially  1  and  2: 

( 1 )  The  ground  must  be  some  distance  from  any  road,  town,  village, 
or  garrison. 

(2)  The  ground  must  be  at  a  distance  from  sources  of  springs, 
streams,  wells,  or  other  sources  of  drinking  water. 

(3)  The  ground  must  be  on  high  land  or  gentle  slopes,  and  the  soil 
must  be  loose  and  more  or  less  dry. 

9.  The  corpses  of  those  belonging  to  the  Imperial  Army  should  be 
cremated  separately,  and  one  of  the  bones  (the  larynx)  sent  home. 

When  circumstances  prevent  this  being  done,  only  the  hair  shall  be 
sent  home  and  the  bones  shall  be  buried  temporarily  on  the  field. 

When  circumstances  prevent  separate  cremation,  the  N.  C.  O.'s  and 
privates  shall  be  cremated  together  and  the  hair  only  sent  home. 

10.  The  bones  and  hair  sent  home  shall  be  buried  in  the  cemetery 
at  home  according  to  clause  6  of  the  Regulations  for  the  Burial  of 
Soldiers. 


CHAP.  III.]  TREATMENT   OF   KILLED.  153 

On  application,  the  bones  and  hair  may  be  given  to  the  relatives  of 
the  deceased  to  bury. 

Remains  buried  temporarily  in  the  field  must  be  taken  home  even- 
tually and  buried  in  a  cemetery  at  home. 

11.  In  the  case  of  corpses  buried  under  the  provisions  of  clause  9 
the  following  should  be  noted: 

(1)  Bones  of  officers,  warrant  officers,  and  senior  non-commissioned 
officers  should  be  given  separate  burial. 

(2)  The  bones  of  other  ranks  should  also  be  buried  separately,  but, 
when  circumstances  do  not  permit,  they  may  be  buried  together. 

(3)  In  any  case  the  bones  of  senior  N.  C.  O.'s  and  warrant  officers 
must  be  given  separate  burial. 

12.  In  the  case  of  interment  of  corpses  belonging  to  the  enemy  the 
following  provisions  should  be  noted: 

(1)  The  corpses  of  officers,  warrant  officers,  and  senior  N.  C.  O.'s 
should  be  buried  separately. 

(2)  The  corpses  of  other  ranks  should  also  be  buried  separately  or 
in  numbers  of  less  than  50  together. 

(3)  The  graves  should  be  one  metre  deep. 

(4)  The  bottoms  of  the  graves  should  be  covered  with  branches  of 
trees,  or  straw,  upon  which  the  corpses  shall  be  placed,  and  a  layer  of 
lime,  charcoal,  ashes,  or  slag  shall  be  placed  over  the  corpses,  and  all 
necessary  sanitary  precautions  taken. 

(5)  The  earth  removed  in  digging  the  graves  shall  be  replaced  over 
the  graves  so  as  to  make  a  small  mound. 

13.  The  corpses  belonging  to  the  Imperial  Army  that  are  buried, 
shall  be  buried  according  to  the  same  instructions  as  in  the  previous 
clause,  some  of  the  hair  from  each  corpse  being  preserved. 

14.  When  corpses  belonging  to  the  enemy  are  cremated,  the  bones 
shall  be  buried  under  the  instructions  contained  in  clause  11. 

15.  The  graves  of  the  dead  of  the  Imperial  Army  shall  be  kept 
separate  from  those  of  the  enemy,  and  proper  marks  shall  be  erected 
over  both. 

16.  In  every  case  of  burial  the  proper  funeral  rites  shall  be  observed, 
and  shall  be  conducted  by  the  Shinto  or  Buddhist  priests,  chaplains,  or 
priests  of  any  other  religion. 

17.  When  the  corpses  of  inhabitants  of  the  country  are  found  on 
the  field,  they  shall  be  buried  as  laid  down  for  the  enemy,  but  should 
they  be  claimed  by  relatives,  they  shall  be  handed  over  if  possible. 

18.  The  personal  effects  of  the  dead  of  the  Imperial  Army  shall  be 
packed  with  the  bone  and  hair,  addressed  with  the  full  name,  rank, 
and  regiment  of  the  deceased,  and  the  package  forwarded  to  the  Divi- 
sional Headquarters  where  the  deceased  was  mobilised  or  to  the  office 
where  the  organisation  of  his  corps  took  place. 

19.  The  name,  age,  nationality,  position,  rank,  and  regiment  of  the 
dead  of  the  enemy  shall,  if  known,  be  entered  on  a  list,  and  the  list  shall 
be  sent  by  the  Divisional  Headquarters  or  by  the  officer  left  in  com- 
mand to  the  Prisoners'  Information  Bureau  at  Tokyo.    Personal  effects, 


154  LAWS  OF  LAND   WARFARE.  [PART  II. 

with  the  exception  of  arms,  horses,  and  maps,  shall  be  packed,  and  the 
package  addressed  with  the  full  name  and  rank  of  the  deceased  and 
forwarded  to  the  above-named  office. 

20.  Effects  belonging  to  dead  inhabitants  of  the  locality  shall  be 
handed  to  the  local  officials  by  the  Headquarters  or  the  troops,  in  order 
to  be  returned  to  the  relatives  of  the  deceased. 

21.  Arms,  provisions,  horses,  maps,  and  other  articles  left  on  the 
field  without  an  owner  shall  be  dealt  with  by  the  Headquarters  or 
troops  of  the  district.  All  other  articles,  except  those  belonging  to  the 
Imperial  Army,  shall  be  regarded  as  trophies. 

22.  The  manner  of  the  burial  rites,  the  disposal  of  articles  belong- 
ing to  the  dead  according  to  clause  18,  the  description  and  number  of 
the  articles  shall  be  reported  by  the  Headquarters  of  the  district  troops 
to  the  general  officer  commanding. 

23.  Dead  horses  shall  either  be  buried  or  burned,  and  in  burying 
them  the  provisions  of  3  and  4  of  clause  12  shall  be  noted,  and  special 
medical  precautions  taken. 

24.  These  regulations  shall  apply  to  the  treatment  of  dead  and  their 
effects  in  all  places  in  the  area  of  operations,  even  though  not  on  the 
actual  field  of  battle. 


CHAPTEE    IV. 
MEANS    OF   INJURING   THE    ENEMY. 

Sect.  I.  False  Accusations  of  the  Russian  Government 
against  the  Japanese  Army  Refuted. 

As  above  referred  to,  His  Majesty,  the  Emperor  of  Japan, 
declared  in  the  Imperial  Declaration  of  War  that  the  actions 
of  the  Japanese  Army  should  be  based  upon  International  Law. 
Two  specialists  of  that  science  were  attached  to  each  of  the  dif- 
ferent armies  in  Manchuria  as  legal  advisers.  Dr.  Ariga  was 
on  the  staff  of  the  General  Headquarters  in  Manchuria,  and 
the  Foreign  Office,  as  well  as  the  War  Office,  engaged  Drs. 
Terao,  Nakamura,  Akiyama,  Tachi,  and  the  author,  in  making 
investigations  concerning  the  legal  questions  involved,  so  that 
proper  instructions  might  be  given  to  the  headquarters  of  the 
different  Imperial  Armies  at  the  front.  To  those  who  know 
the  fact  that  such  careful  steps  were  taken  by  the  Japanese 
Government,  it  can  by  no  means  be  imagined  that  the  army 
should  take  any  action  violating  international  law. 

It  is  to  be  greatly  regretted  that  the  Russian  Government 
often  spread  false  reports  to  the  effect  that  steps  had  been 
taken  in  violation  of  International  Law,  and  it  is  the  purpose 
to  describe  the  true  state  of  affairs,  and  thus  dispel  the  prevail- 
ing doubts,  for  the  sake  of  Japan's  honour,  or  rather  for  the 
sake  of  Justice. 

I.  Concerning  the  Japanese  Soldiers'  Firing  upon  a  Rus- 
sian Train  Flying  the  Red  Cross  Flag  near  Pulantien. 

The  Japanese  Army  was  accused  by  the  Russian  Govern- 
ment of  firing  upon  a  Russian  train  flying  the  Red  Cross  flag, 

155 


156  LAWS  OF  LAND  WARFARE.  [PART  II. 


on  May  6th,  1904.  The  report  relative  to  this  matter  was  as 
follows : 

On  the  16th  May,  1904,  the  Eussian  Government  sent  a 
protest  through  the  French  Minister  at  Tokyo  to  our  Govern- 
ment. 

The  Imperial  Government  had  already  commanded  the  au- 
thorities at  the  headquarters  of  the  army  at  Manchuria  to  in- 
vestigate the  matter,  and  they  had  found  that  it  was  quite  dif- 
ferent from  what  was  alleged.  On  the  23rd  of  May,  1904,  the 
Japanese  Minister  for  Foreign  Affairs  answered  in  the  follow- 
ing sense : 

The  Eussian  Government  has  alleged  that  the  Japanese 
troops  attacked  the  Eussian  hospital  train  starting  from  Port 
Arthur  under  the  Eed  Cross  flag  on  May  6th.  But  an  official 
report  received  hy  the  Imperial  Government  from  the  com- 
mander of  the  Manchurian  troops  at  the  front  says :  "  When 
a  Japanese  detachment  approached  Pulantien  on  the  6th  inst, 
a  train  without  any  of  the  special  marks  required  by  the  Eed 
Cross  Eegulations,  was  sighted  running  northward  from  the 
direction  of  Port  Arthur.  The  Eussian  soldiers  in  the  train 
immediately  fired  upon  the  Japanese  detachment,  which,  of 
course,  replied.  Then  the  train  halted  suddenly  and  a  Eed 
Cross  flag  was  hoisted,  whereupon  the  Japanese  detachment 
stopped  firing  and  proceeded  to  examine  the  case.  But  just 
then  the  train  resumed  its  journey  at  full  speed,  and  escaped 
without  stopping  at  the  Pulantien  station." 

According  to  another  report,  it  is  certain  that  the  train  was 
full  of  many  healthy  Eussian  soldiers,  as  well  as  officers  both 
civil  and  military.  If  it  had  been  a  hospital  train,  as  alleged 
by  the  Eussian  Government,  it  cannot  be  understood  why  it 
escaped  without  receiving  the  examination  by  the  Japanese 
troops.  The  occurrence  of  that  day  is  a  case  of  the  Eussian 
abuse  of  the  Eed  Cross  flag  to  avoid  the  attack  of  the  Imperial 
troops.  In  spite  of  this  fact,  the  Eussian  Government  inten- 
tionally confused  the  actions  of  the  two  parties  and  accused 
the  Japanese  troops  of  violating  the  Geneva  Convention. 


CHAP.  IV.,  SECT.  I.]      FALSE   ACCUSATIONS.  157 

This  is  a  false  accusation. 

In  this  affair  M.  Nypels  argued  as  follows: 

De  Avondpost,  May  14th,  1904. 

A  Russian  Protest. 

Russia  seems  not  to  be  lucky  even  with  her  protests.  In  the  begin- 
ning of  the  war  Russia  protested  against  the  proceedings  by  which  the 
Japanese  began  the  hostilities,  and  she  asked,  at  first,  public  opinion 
on  that  matter;  but  the  protest  has  been  judged  ill  grounded,  because 
Japan  did  only  what  had  already  been  done  before  under  like  circum- 
stances, and  even  by  Russia  herself  in  her  war  with  Turkey. 

According  to  the  daily  newspapers,  Russia  has  now  again  protested 
with  the  Powers  which  signed  The  Hague  and  Geneva  Conventions, 
against  the  Japanese  for  firing,  on  the  6th  of  May,  on  a  train  which 
carried  the  Red  Cross  flag. 

But  what  says  Art.  I.  of  the  Geneva  Convention  of  the  22nd  of 
August,  1864?  "Ambulances  and  hospitals  which  are  in  the  service  of 
armies  are  acknowledged  to  be  neutral,  and  must  be  protected  and 
respected  as  long  as  patients  or  wounded  persons  are  in  them.  The 
neutrality  of  ambulances  and  hospitals  ceases  when  they  are  guarded 
by  a  military  force." 

The  intention  of  this  additional  clause  does  not  mean  a  police  guard 
or  a  detachment  in  order  to  provide  security  there;  in  the  Manuel  public 
par  VInstitut  de  Droit  International  it  is  said  upon  this  point:  "  Ce  qui 
niexclut  pas  la  presence  d'un  poste  de  police  " ;  but  if  a  flag  with  the  Red 
Cross  is  used  as  the  protection  for  a  force  of  any  size,  then  its  protective 
force  ceases,  and  it  is  right;  because  by  such  an  application  the  smallest 
ambulance  could  be  used  for  the  protection  of  large  numbers  of  troops. 
In  battle  the  necessities  of  war  must  take  precedence  of  all,  but  hu- 
manity must  be  respected.  If  the  belligerent  parties  wish  not  to  take 
away  all  the  value  and  meaning  from  this  respect  of  humanity,  then 
they  must  guard  against  the  abuse  of  it,  and  they  must  be  careful  to 
avoid  even  a  trace  of  making  humanity  the  pretext  for  operations  for- 
eign to  neutrality  and  inviolability.  It  is  not  only  forbidden  to  use 
the  Red  Cross  flag  for  the  protection  of  troops,  but  also  for  the  cover- 
ing of  war  materials,  or  to  avoid  interruption  in  the  transportation  of 
papers,  information,  and  correspondence  relating  to  the  war. 

To  justify  the  protest  of  Russia  it  must  be  proved  that  in  the  train 
which  was  fired  at  there  wTere  no  other  things  than  patients,  wounded 
persons,  women  and  children. 

It  seems  to  us  that  the  Russian  Government  could  not  ascertain  such 
facts  by  the  10th  of  May,  with  respect  to  a  deed  which  was  committed 
on  the  6th  instant  in  a  turbulent  district,  far  removed,  and  in  a  tur- 
bulent period. 

But,  even  if  this  be  certain,  there  is  one  more  question:  Did  the 
Japanese  fire  at  the  train  without  ordering  the  train  to  stop?     If  the 


158  LAWS  OF   LAND   WARFARE.  [PART  II. 

summons  was  given  and  was  not  complied  with,  then  the  fault  is  on 
the  Russian  side;  because  those  who  expect  protection  on  the  ground 
of  existing  stipulations,  must  recognise  that  the  adversary  may  also 
take  advantage  of  the  same  stipulations.  What  Russia  does  with  ships 
on  the  sea,  Japan  may  do  with  railways  on  land.  If  it  is  true  that  a 
messenger  was  sent  to  meet  the  train  to  warn  it  to  go  back,  and  that 
Colonel  Uranof,  who  was  in  the  train,  ordered  "  go  ahead  at  full  speed," 
then  it  may  be  supposed  that  the  Japanese  could  not  aim  accurately  at 
the  train  at  a  point  which  they  wished  to  fire  upon,  and  so  they  have, 
on  this  occasion,  violated  the  Red  Cross  and  abused  humanity  less  than 
the  Colonel  who  has  to  take  the  responsibility  for  the  furious  speed. 

All  these  points  depend  upon  the  reports,  which  are  only  half  true. 
Therefore  it  is  not  the  purpose  either  to  defend  or  to  accuse  this  or 
that  proceeding ;  but,  on  the  contrary,  to  warn  those  who  have  already 
taken  the  side  of  either  party  in  this  question,  to  withhold  judgment 
until  the  circumstances  of  the  matter  shall  be  better  known. 

G.  Nypels. 


II.  The  False  Accusation  of  the  Japanese  Troops  Firing 
upon  the  Russian  Bed  Cross  Flag. 

It  was  often  reported  by  the  Eussian  Government  that 
Japanese  troops  fired  upon  their  Red  Cross  flag.  But  in  the 
course  of  time  the  true  state  of  affairs  became  clear. 

As  an  illustration  of  this,  reference  is  made  to  the  false 
accusation  brought  forward  concerning  the  troops  under  Gen- 
eral Kuroki. 

A  St.  Petersburg  telegram  states  that  during  the  operations 
of  June  26th  and  27th  Japanese  troops  under  General  Kurola 
fired  upon  the  Bed  Cross  flag,  killing  many  hospital  assistants 
and  wounding  Dr.  Roochkow;  and  that  they  committed  bar- 
barous acts  of  cruelties  against  the  dead  and  wounded  Russians 
left  on  the  field,  and  that  photographs  had  been  taken  of  such 
acts  in  order  that  they  may  serve  as  proofs  to  be  presented 
to  the  Hague  Tribunal. 

In  connection  with  the  above,  the  Kolnische  Zeitung 
states  that  even  the  best  disciplined  are  sometimes  apt  to  com- 
mit excesses  in  the  heat  of  battle.  Japanese  officers  generally 
do  everything  in  their  power  to  prevent  cruel  acts,  and  they  are 
usually  able  to  compel  their  men  to  do  so.  As  European  eye- 
witnesses have  reported,  Japanese  authorities  have  taken  sever- 


CHAP.  IV.,  SECT.  I.]      FALSE   ACCUSATIONS.  159 

est  measures  against  such  acts.  Japan  has  prescribed  strict 
observance  of  the  Geneva  Convention  on  the  part  of  her  troops, 
which  she  must  continue  to  do,  as  her  aim  is  to  be  treated  as 
an  equal  by  European  States.  It  can  therefore  be  accepted  as 
a  fact  that  her  army  commanders  will  direct  all  their  attention 
to  avoid  any  cases  which  would  bring  discredit  upon  the  honour 
of  the  Japanese  army. 

Thus  the  process  of  time  manifests  the  true  state  of  affairs 
and  justifies  the  adage,  "  Honesty  is  the  best  policy." 

III.  The  False  Accusation  of  the  Japanese  Troops  Firing 
at  the  Russian  Red  Cross  Hospital  in  Port  Arthur. 

This  will  be  treated  in  the  chapter  on  Bombardment. 

IV.  The  Report  that  Japanese  Soldiers  Abused  the  Red 
Cross  Flag  in  a  Conflict  near  Chong-ju. 

The  Russian  Government  tried  to  discredit  the  Japanese 
troops  by  publishing  various  false  reports.  The  following  is 
another  instance  of  how  the  Russians  were  publishing  false  re- 
ports : 

"  According  to  a  Russian  telegraph  agency,  it  is  stated  that  a  recent 
conflict  at  Chong-ju  with  the  Japanese  ended  in  a  victory  for  the  Rus- 
sian army,  the  Japanese  sustaining  a  loss  ten  times  greater  than  the 
Russian.  It  is  said  that  they  had  at  least  50  dead  and  120  wounded. 
The  dismay  of  the  Japanese  was  so  great  that  they  hoisted  two  flags 
of  the  Red  Cross  as  a  sign  of  surrender.  Such  a  confusion  among  the 
Japanese  was  never  seen  during  the  war  with  China.  Russian  troops 
in  Liao-yang  were  greatly  elated  by  this  first  brilliant  victory  in  Korea." 

In  an  article  entitled  "  Abuse  of  the  Red  Cross  Flag,"  in  the  Novoye 
Yremiya  of  March  31st,  it  is  said  that  after  severe  fighting  in  An-cheng, 
the  Japanese  soldiers  took  refuge  in  a  native  house  and  hoisted  a  Red 
Cross  flag  at  two  points,  with  the  object  of  sheltering  200  able-bodied 
soldiers  behind  a  few  wounded,  and  waiting  for  reinforcements.  This 
is  a  violation  of  Art.  I.,  Geneva  Convention  of  1864.  The  Russians 
thus  deceived  will  be  compelled  to  fire  upon  the  Red  Cross  flag  in 
the  future,  and  therefore  it  should  be  hoisted  in  a  distant  place  before 
commencement  of  fighting. 

The  Japanese  Government  at  once  made  an  investigation 
into  the  above,  relating  to  the  Red  Cross  flag  alleged  to  have 
been  abused  by  the  Japanese,  but  found  it  to  be  a  fabrica- 


160  LAWS   OF  LAND   WARFARE.  [PART  II. 

tion.     The  following  is  the  report  made  by  the  chief  of  the 
Temporary  Dressing  Station  at  Chong-ju: 

Chong-ju,  March  29,  1904. 

The  1st  Battalion  of  the  1st  Regiment  of  the  Guards  Infantry  started 
for  Kasan  at  6  a.m.  on  March  28th  and  followed  the  Guards  Cavalry 
Regiment  toward  Chong-ju.  At  11.45  a.m.  a  rifle  fire  was  heard  at 
Tokutatsu,  about  four  thousand  metres  on  this  side  of  Chong-ju,  towards 
which  the  battalion  proceeded,  light  armed,  at  double  time.  When  the 
battalion  reached  Igen,  south  of  Chong-ju,  at  12.20  p.m.,  our  cavalry 
already  had  had  some  casualties;  the  enemy  held  and  defended  the 
Chong-ju  Castle  with  great  energy;  but  the  battalion  deployed  them- 
selves at  once  for  an  attack. 

A  temporary  wound-dressing  station  was  opened  in  a  house  by  the 
roadside  at  Igen,  about  two  thousand  metres  south  of  Chong-ju,  and 
auxiliary  stretcher-bearers  brought  the  dead  and  the  wounded  from  the 
line  of  battle.  At  1.20  the  station  was  moved  forwards  from  Igen  to 
the  Gishu  road,  north  of  the  castle.  Now  the  enemy  retreated  far  back- 
wards and  our  troops  did  not  pursue  them.  At  4.20  the  dressing-station 
was  opened  in  the  Christian  Church  in  the  eastern  section  of  the  castle, 
and  all  the  dead  and  wounded  were  brought  there  from  the  station  at 
Igen  and  from  the  quarters  guarded  by  the  cavalry. 

Everything  in  the  way  of  treatment  to  be  given  them  was  furnished 
at  7.47  p.m.  Surgeon- Captain  Yunosuke  Shoji, 

attached  to  the  1st  Regiment  of  the  Guard  Infantry. 

On  the  other  hand,  it  was  the  Russian  troops  themselves  that 
abused  the  Red  Cross  flag,  as  described  in  the  report  given  by  the  army 
investing  Port  Arthur,  which  was  published  in  the  Official  Gazette  under 
date  of  November  7,  1904.     It  read  as  follows: 

When  we  were  confronting  the  enemy  in  a  region  northeast  of 
Taisekido  on  July  19,  this  year,  the  enemy  sent  out  twice,  under  the 
Red  Cross  flag,  a  number  of  men  wearing  the  Red  Cross  badges  upon 
their  arms  to  bring  in  the  dead  and  wounded.  They  came  within  our 
line  of  battle;  but,  honouring  the  badges  upon  their  arms,  our  soldiers 
refrained  from  shooting  them,  and  only  commanded  them  to  retreat. 
On  30th  of  the  same  month  several  Russian  soldiers  were  found  again 
entering  our  line  of  battle,  wearing  the  Red  Cross  badges  upon  their 
arms  and  carrying  muskets  in  their  hands.  This  occurred  in  an  engage- 
ment in  the  quarter  northeast  of  Suishiei. 

As  it  was  a  violation  of  the  conditions  of  war,  our  troops  captured 
them  at  once.  Moreover,  when  those  entering  our  line  of  battle  with 
the  Red  Cross  badges  on  their  arms  at  the  north  of  Suishiei  on  the 
same  day  were  examined,  they  were  found  to  have  been  of  the  military 
band  attached  to  the  Russian  regiment,  but  commanded  to  wear  the 
Red  Cross  badges  temporarily  and  to  enter  within  our  line  of  battle  as 
if  to  rescue  the  wounded. 


CHAP.  IV.,  SECT.  I.]      FALSE   ACCUSATIONS.  161 

Besides,  there  is  no  doubt,  from  their  own  testimony,  that  they  had 
no  warrant  for  wearing  these  badges. 

Thus  the  Russians  try  to  spy  upon  our  movements  under  the  pre- 
tence of  bringing  together  the  dead  and  the  wounded,  and  our  army  is 
always  subject  to  greater  danger.  Now,  there  is  the  customary  practice 
of  making  a  short  truce  during  hostilities  when  either  party  wants  to 
take  in  their  dead  and  wounded,  and  our  army  will  hereafter  regard 
the  above-described  step  taken  against  this  custom  as  a  case  of  the 
abuse  of  the  Red  Cross  flag  and  badges.  We  shall  not  be  responsible 
for  respecting  these  inviolable  badges.  The  Russians  wearing  the  Red 
Cross  badges  upon  their  arms  should  be  treated  either  as  spies  or  as 
combatants,  judging  from  their  actions 

By  Order. 

It  was  the  Eussian  troops  that  abused  the  Japanese  flag 
also  in  an  engagement  near  Tehlisz,  as  attested  by  the  follow- 
ing official  report: 

The  War  Office,  June  17,  1904. 
Sir: 

According  to  a  telegram  sent  by  the  Commander-in-Chief  of  the 
Japanese  forces  on  the  Liao-tung  Peninsula,  and  received  yesterday 
morning  by  the  Imperial  Headquarters,  the  Russian  troops  abused  our 
national  flag  during  the  battle  of  15th  inst.  near  Tehlisz.  A  squad 
of  our  infantry  actually  witnessed  the  Russian  soldiers  proceeding  with 
our  national  flags  flying,  and  our  Artillery  suspended  their  fire  at  this 
sight.  This  treachery  constitutes  a  grave  offence  against  the  customary 
laws  of  war,  being  a  positive  infraction  of  Art.  XXIII.  of  the  Appendix 
to  The  Hague  Convention.  With  this  note  it  is  hoped  that  a  strong 
protest  will  be  lodged  by  Your  Excellency  against  the  Russian  Gov- 
ernment. 

(Signed)      Seiki  Terauchi, 
Minister  of  War. 
To  His  Excellency  Baron  Jutaro  Komura, 
Minister  of  Foreign  Affairs. 

Accordingly,  on  June  29,  1904,  Baron  Komura  gave  tne 
instruction  to  Minister  Takahira  at  Washington,  saying  that: 

The  Commander-in-Chief  of  the  Japanese  Forces  on  the  Liao-tung 
Peninsula  declares  in  his  reports  to  the  Imperial  Headquarters  that, 
during  the  battle  of  June  15th  near  Tehlisz,  the  Russian  troops  dis- 
played the  Japanese  flag.  The  Japanese  Artillery,  seeing  their  national 
colours  flying,  suspended  their  fire.  The  entire  incident  was  witnessed 
by  a  squad  of  Japanese  infantry,  and  the  essential  facts  of  the  case 
are,  it  is  believed,  beyond  question.  The  act  constitutes  a  grave  offence 
against  the  customary  laws  of  war,  and  is,  moreover,  in  direct  disre- 


162  LAWS   OF   LAND   WARFARE.  [PART   II. 

gard  of  Art.  XXIII.  of  the  regulations  annexed  to  The  Hague  Conven- 
tion of  1899,  concerning  the  laws  and  customs  of  war,  and  the  Japanese 
Government  believe  it  to  be  their  duty  in  the  interests  of  humanity 
to  exhaust  every  effort  to  put  a  stop  to  such  offences.  It  will,  accord- 
ingly, be  requested  that  the  Secretary  of  State  will  instruct  the  United 
States  Ambassador  at  St.  Petersburg  to  call  the  attention  of  the  Rus- 
sian Government  to  this  abuse  of  the  national  flag  of  Japan. 

But  the  Kussian  Government  apparently  gave  no  reply  to 
this  matter. 

Moreover,  the  following  statements  appeared  in  the  Official 
Gazette  and  may  be  cited  here  as  indubitable  instances  of  the 
Russian  abuse  of  the  Japanese  flag: 

Russian  Abuse  of  the  Japanese  Flag. 

Among  the  Russian  official  documents  captured  by  our  extreme  Left 
Army  during  the  Battle  of  Mukden  was  found  a  copy  of  a  pamphlet 
issued  by  General  Kuropatkin  for  distribution  among  his  army,  entitled 
"  Japanese  Tactics  as  known  by  Actual  Experience."  In  this  pamphlet 
there  occurs  a  paragraph  which  reads  substantially  as  follows :  "  In 
making  an  attack,  each  company  or  section  of  a  Japanese  Army  deploys 
from  one  of  its  wings  and  becomes  a  bow-shaped  group.  In  this  for- 
mation the  whole  line  advances  simultaneously.  In  each  interval  be- 
tween the  sections  of  their  infantry  they  hoist  a  white  flag  with  a  red 
spot  in  its  centre,  with  the  probable  object  of  showing  the  position  of 
each  group  and  of  avoiding  the  fire  of  their  own  artillery.  On  the 
occasion  of  the  firing  by  the  Japanese  on  the  redoubt  garrisoned  by 
the  34th  Seifsky  Infantry  Regiment,  during  the  engagement  of  Oct.  1 
(Oct.  14  in  the  New  Calendar),  the  commander  of  the  Regiment  caused 
his  troops  to  hoist  a  Japanese  flag  on  Surusarenko  Hill.  The  Japanese 
instantly  stopped  firing." 

This  naive  confession  by  General  Kuropatkin  of  the  abuse  of  the 
Japanese  flag  by  his  army  is  a  significant  commentary  upon  the  Rus- 
sian attitude  with  regard  to  the  obligations  of  civilised  warfare. 

Russian  Treachery. 

Another  instance  of  the  Russian  abuse  of  our  flag  occurred  during 
the  recent  engagement  near  Liao-yang.  At  noon  on  the  25th  of  Septem- 
ber, 1904,  our  troops  were  advancing  on  one  of  the  enemy's  forts,  when 
firing  suddenly  ceased,  and  the  Japanese  flag  was  seen  flying  from  the 
fort.  This  was,  however,  a  ruse.  Our  force  on  approaching  the  fort, 
thinking  that  it  had  already  fallen  into  our  hands,  was  received  by  a 
severe  fire,  which  almost  annihilated  one  of  our  companies.  Fortu- 
nately, however,  reinforcements  arrived,  and  the  enemy  was  finally  dis- 
lodged from  his  position. 


CHAP.  IV.,  SECT.  I.]      FALSE   ACCUSATIONS.  163 

V.  The  False  Accusation  of  a  Russian  Surgeon  Being 
Treated  Unjustly  at  Tashihhiang. 

The  French  Minister  sent  a  note  on  this  point  to  the  Japa- 
nese Foreign  Minister  on  December  2,  1904. 

The  following  note,  replying  on  this  matter,  was  sent  to 
the  French  Minister,  after  the  non-existence  of  such  facts  was 
ascertained  by  the  authorities  of  our  War  Office. 

Department  of  War  Office,  January  20,  1905. 

In  reply  to  the  letter  of  December  2nd  of  last  year,  sent  to  our 
Government  at  the  request  of  the  Russian  Government,  in  the  case  of 
Surgeon  Safronoff,  attached  to  the  Ninth  Regiment  of  Tobolsk,  and 
alleged  to  have  been  not  only  made  prisoner  at  Tashihchiao  and  de- 
tained for  more  than  two  weeks  by  our  Imperial  troops,  but  also'  to 
have  been  treated  violently  or  unjustly  by  our  officers  and  men. 

It  proves  to  be  untrue  that  our  Imperial  Army  made  prisoner  one 
called  Surgeon  Safronoff,  attached  to  the  Ninth  Regiment  of  Tobolsk, 
at  Tashihchiao  on  July  20,  last  year.  Although  one  called  Surgeon 
Isaac  Penbaig,  attached  to  the  Fourth  Field  Hospital,  was  detained 
with  the  others  by  the  necessities  of  war  at  the  time  of  our  occupation 
of  Tashihchiao  on  July  20th  last  year.  At  that  time  proper  treatment 
was  given  by  our  troops  to  these  prisoners,  nothing  unjust  or  violent 
being  done  to  them.  Moreover,  the  above-named  surgeon  and  two  other 
non-combatants  were  treated  with  civility,  and  at  their  discharge  they 
were  sent  to  Inkas,  at  their  own  request,  on  the  30th  of  the  same 
month.  They  were  entrusted  to  the  American  Consul  there,  to  be  con- 
voyed to  the  Hopei  station,  when  they  were  set  entirely  free.  Thus, 
it  is  altogether  incongruous  with  the  facts  that  they  are  alleged  to  have 
been  detained  above  two  weeks. 

For  this  reason  our  Imperial  Government  can  by  no  means  admit 
what  was  alleged  by  the  Russian  Government  to  have  been  committed 
by  our  Imperial  troops  in  violation  of  the  Geneva  Convention. 

VI.  Slander  on  Japan's  Treatment  of  Russian  Killed  and 
Wounded. 

It  was  a  real  surprise  to  the  Japanese  that  slander  came 
from  various  sources  concerning  its  treatment  of  the  enemy's 
wounded  and  sick,  for  it  had  been  the  universal  conviction  that 
no  army  ever  more  consistently  trod  the  broad  ways  of  hu- 
manity. 

An  Italian  paper  of  June  15,  1904,  had  a  slanderous  article 
under  the  title,  "  The  Cruelty  of  the  Japanese  Soldiers  Towards 


164  LAWS   OF  LAND   WARFARE.  [PART   II. 

Russian  Killed  and  Wounded/'  and  other  papers  also  published 
equally  false  articles,  based  upon  information  furnished  by 
antagonists.  Soon  after,  however,  careful  inquiries  made  by 
Japanese  Headquarters  exposed  the  prejudices  of  such  un- 
grounded reports,  and  the  light  of  truth  dispelled  what  illu- 
sions they  had  caused,  as  may  be  seen  from  the  following  ex- 
tract from  a  German  paper: 

(1)     Japanischer  Protest  gegen  die  russichen  Beschuldigungen. 

Die  japanische  Gesandschaft  in  Wien  veraffentlicht  folgende  Mittei- 
lung:  Nachdem  es  der  japanishen  Regierung  zur  Kenntnis  gelangte, 
dasz  in  einem  Teile  der  auswartigen  Presse  aus  Liaoyang  datierte  Ber- 
iclite  veroffentlicht  wurden,  wonach  japansche  Soldaten  Grausamkeiten 
an  russischen  Verwundeten  und  Verstiimmelungen  an  Toten  veriibt 
hatten,  hielt  sie  es  fiir  ihre  Pflicht,  diese  Anklagen  an  Ort  und  Stelle 
auf  ihren  Wert  zu  priifen.  Als  Ergebnis  dieser  Untersuchung  wurde* 
der  japanischen  Regierung  von  Seite  der  Militarbehorde  berichtet, 
dasz  alle  diese  Meldungen  jeder  Grundlage  entbehren.  Die  mit  der  Un- 
tersuchung betrauten  Militarbehorden  stellten  fest,  dasz  nicht  blosz 
keine  Grausamkeiten  veriibt  wurden,  dasz  vielmehr  die  Disziplin 
liberall  aufrechterhalten  wurde,  und  dasz  bei  keinem  einzigen  japa- 
nischen Arme  ekorps  irgend  welche  Ausschreitung  vorgekommen  ist. 
Alle  Divisions  Kommandanten  sind  von  der  Haltung  ihrer  Truppen 
uberaus  befriedigt,  da  sie  die  von  ihnen  ausgegebenen  Tagesbefehle, 
•die  feindlichen  Soldaten  von  dem  Augenblicke,  da  sie  kampfunfahig 
werden,  als  Waffenbriider  zu  behandeln,  strengstens  befolgen. 
,...  (2)  Tokio,  4  Juli.  (Offiziell.)  Es  befinden  sich  derzeit  uber  1000 
Russen  in  japanischer  Kriegsgefangenschaft,  und  alle  diese  Gefangenen 
sind  ohne  Ausnahme  dankbar  fiir  die  humane  Behandlung,  welche  ihnen 
seitens  unserer  Behorden  zu  teil  wird.  Das  in  der  Haager  Konvention 
fiir  Kriegsgefangene  vorgesehene  Informationsbureau  wurde  sofort 
bei  Ausbruch  der  Feindseligkeiten  aufgestellt,  und  alle  die  Kriegsge- 
fangenen  betreffenden  Detailinformationen  werden  ebenso  wie  die  auf 
den  Schlachtfelden  aufgefangenen  oder  von  den  in  unseren  Spitatern 
verstorbenen  Verwundeten  zuruckgelassenen  Gegenstiinde,  welche  das 
personliche  Eigentum  der  russichen  Soldaten  bildeten,  regelmaszig 
den  russischen  Behorden  ubermittelt.  Diese  Tatsache  steht  in  einem 
bemerkenswerten  Gegensatze  zu  dem  seitens  der  russischen  Behorden 
beobachteten  Vorgange,  welche  aus  eigener  Initiative  der  japanischen 
Regierung  noch  niemals  irgend  eine  Nachricht  uber  die  japanischen 
Kriegsgefangenen  zugehen  lieszen. 


CHAP.  IV.,  SECT.  I.]      FALSE  ACCUSATIONS.  165 

(3)     Behandlung  russischer  Verwundeter  und  Gefangener  in  Japan. 

Tokio,  4  Juli.  (Offiziell.)  Der  Generalstabschef  der  zweiten  Armee 
telegraphiert : 

Mit  Beziehung  auf  gewisse  irrtiimliche  nachrichten,  betreffend  an- 
gebliche  Ausschreitungen  japaniseher  Soldaten,  erscheint  es  angezeigt, 
darauf  hinzuweisen,  dasz  am  12  Juni,  an  welchem  Tage  solche  Aus- 
schreitungen stattgefunden  haben  sollen,  Zusammenstosze  zwischen  un- 
serer  Armee  und  dem  Feinde  nicht  erfolgt  sind,  und  dasz  es  ebenso  we- 
nig  zu  irgend  welchen  Scharmiitzeln  zwischen  Aufklarungs  abteilungen 
gekommen  ist.  Obwohl  sich  die  Russen  am  15  Juni  verschiedener  Aus- 
schreitungen gegen  bei  Fonghwangtschong  verwundete  oder  gefallene 
Japaner  schuldig  machten,  ist  auf  japaniseher  Seite  nichts  dergleichen 
vorgefallen.  Die  in  unsere  Hande  gefallenen  verwundeten  Russen  geben 
ihrer  Dankbarkeit  Ausdruck  fur  die  aufmerksame  Behandlung,  welche 
ihnen  zu  teil  wird.     Die  gefallenen  Feinde  werden  aufgelesen  und  mit 


(4     Japanische  Meldung  iiber  russiche  Grausamkeiten. 

Tokio,  4  Juli.  (Offiziell.)  Von  dem  Generalstabschef  der  zweiten 
Armee  wird  gemeldet. 

Am  15,  Juni  wurde  eine  Rekognoszierungsabteilung,  bestehend  aus 
sechs  Unteroffizieren  und  Soldaten,  von  ungefiihr  funfzehn  Russen 
bei  Chengtsushan  uberfallen  und  getotet.  Die  Russen  bohrten  ihre  Ba- 
jonette  in  Augen  und  Mund,  der  Leichen,  offneten  ihnen  den  Unterleib 
und  hemachtigten  sich  des  Inhalts  ihrer  Taschen. 

Am  27,  Juni  wurde  ein  Gemeiner  erster  Klasse  namens  Kobayaschi 
yom  3.  Kavallerie-Regment  auf  Posten  an  sinem  Punkt  ungefiihr  vier 
Kilometer  nordostelich  von  Hsunyocheng  erschossen  und  fiel  vom  Pferde, 
worauf  sich  etwa  20  russische  Kavalleristen  um  den  Leichnam  sam- 
melten,  den  Unterleib  mit  dem  Bajonette  durchstachen  und  andere 
Akte  der  Grausamkeit  veriibten.  Sie  wurden  von  einem  Detachement 
japanisher  Kavallerie  vertrieben.     Der  Leichnam  wurde  uns  eingeliefert. 

The  following  was  contained  in  the  Novoye  Vremiya  re- 
ceived on  January  31st,  1904: 

Information  Furnished   by  a  Russian  Officer  Concerning   the  Japanese 
Treatment  of  the  Russian  Wounded. 

S.  A.  Z.  Zalauraka,  second  captain,  commander  of  the  4th  company 
of  the  36th  Regiment  of  East  Siberian  Sharpshooters,  who  was  seriously 
wounded   at  Tei-ri-ssu  and  was  received  in  audience  by  the   Emperor 


166  LAWS   OF   LAND   WARFARE.  [PART   II. 

and  the  Empress  at  St.  Petersburg  on  his  way  to  Cann  for  his  health, 
made  the  following  remark  in  his  conversation: 

"  I  cannot  believe  the  so-called  Japanese  cruelty  so  frequently  dealt 
with  in  the  press,  though  individual  instances  may  not  be  denied.  Be- 
fore one  judges  the  Japanese  conduct  he  should  be  careful  not  to  ignore 
the  circumstances  in  which  the  conduct  occurred.  To  take  an  example, 
the  battle  of  Tei-ri-ssu,  where  I  was  wounded,  was  a  hard  fight  for  our 
enemy,  and  their  casualties  were  tremendous.  The  enemy  made  a  sally 
at  us  as  we  were  marching  out  triumphantly,  and  met  a  stubborn 
resistance  from  our  wounded,  who,  though  prostrate,  fired  at  them  with 
might  and  main.  Under  such  circumstances  it  is  hardly  believable  that 
any  gallant  European  army  would  have  acted  less  cruelly  than  our 
Asiatic  Enemy.  In  fact,  the  best  witness  to  the  enemy's  not  having 
been  guilty  of  any  cruelty  of  the  extreme  sort  may  be  found  in  the 
fact  that  our  soldiers  bear  no  rancour  whatever  against  the  enemy." 

On  being  next  asked  about  the  Russian  treatment  of  the  enemy's 
wounded,  the  Captain  added  as  follows: 

"Our  soldiers,  generally  speaking,  are  gentle  and  kind  towards  the 
enemy's  wounded,  though  there  may  have  been  some  individual  cases 
when  they  acted  otherwise." 

Sect  II.     Russian  Breaches  of  the  Rules  of  War. 

In  the  preceding  sections  the  author  has  mentioned  the 
facts  and  disproved  the  false  accusations  made  by  the  Eussian 
Government  against  the  actions  of  the  Japanese  Imperial 
troops.  In  this  section  it  is  the  purpose  to  describe  the  cases 
of  actual  violence  committed  on  the  part  of  the  Eussians.  It 
must  be  remembered,  however,  that  the  object  is  not  to  bring 
to  light  some  illegal  acts  of  the  hostile  nation,  but  to  narrate 
the  cruelties  enacted  which  were  too  shocking  to  be  overlooked. 

I.    The  Russians  Firing  at  the  Japanese  Field  Hospitals. 
The  following   are  the  official   documents   concerning   this 
fact:1 

The  Japanese  Minister  to  Acting  Secretary  of  State  Adee. 

Legation  of  Japan,  Washington,  July  20,  1905. 
Sir: 

Under  instructions  from  H.  I.  M.  minister  for  foreign  affairs,  I  have 
the  honour  to  inform  the  United  States  Government,  as  one  of  the  gov- 
ernments which  signified  adhesion  to  The  Geneva  Convention  of  1864, 
of  a  case  of  the  most  flagrant  violation  of  the   said  convention  com- 

i  Foreign  Relations,  pp.  618-619. 


CHAP.  IV.,  SECT.  II.]       RUSSIAN   BREACHES.  167 

mitted  by  the  Imperial  Russian  troops  in  Manchuria,  in  wantonly 
attacking,  on  the  18th  of  May  last,  the  defenceless  and  non-resisting 
personnel  of  a  military  field  hospital  of  the  Imperial  Japanese  army, 
which  was  at  "  Ee-chia-wo-pong,"  in  the  province  of  Feng-tien,  and  in 
wounding  and  killing  the  persons  who  are  entitled  to  protection  and 
respect  by  the  belligerents. 

The  details  of  the  incident  are  given  in  the  annex  as  translated  from 
the  various  reports  received  by  the  Imperial  Government  from  their 
army  in  Manchuria. 

Besides  bringing  the  above  to  the  notice  of  your  government,  I  am 
further  instructed  to  request  your  good  offices  in  instructing  the  United 
States  ambassador  at  St.  Petersburg  to  call  serious  attention  of  the 
Russian  Government  to  this  grave  violation  of  the  stipulations  of  the 
Red  Cross  convention  by  their  troops  in  Manchuria. 

Accept,  etc.,  (Signed)     K.  Takahira. 

[Inclosure.] 
resume  of  the  official  reports  on  the  attack  of  the  japanese 
Military  Field  Hospital  at  "  Ee-chia-wo-pong,"  in  the  Prov- 
ince  of   Feng-tien,   ry   a  rody  of  the  Russian  Cavalry,   on 
May  18,  1905. 

About  10.40  a.m.  of  the  18th  sound  of  rifle-fire  was  heard  in  the 
westerly  direction  of  the  hospital.  Seeing  the  approach  of  danger,  the 
superintendent  of  the  hospital  immediately  ordered  its  withdrawal,  and 
at  about  11.10  a.m.  four  hospital  waggons  and  the  majority  of  the  hos- 
pital corps  sought  refuge  in  the  easterly  direction.  Surgeon  Uyehara, 
superintendent  of  the  hospital,  together  with  DoctoVs  Inouye  and 
Fukuyama,  military  hospital  nurses,  and  soldiers  charged  with  the 
transportation  of  the  hospital  equipments,  stores,  and  other  materials, 
commenced  retreat.  Thereupon  a  body  of  tfre  enemy's  cavalry,  about 
100  strong,  surrounded  "  Ee-chia-wo-pong "  and  fiercely  fired  upon  the 
withdrawing  party.  The  hospital  superintendent  and  party,  being  pur- 
sued by  the  enemy,  retreated  towards  the  village  in  the  easterly  direc- 
tion. The  enemy  having  already  approached  within  the  distance  of  only 
10  metres,  the  superintendent  and  Doctor  Inouye,  who  were  mounted, 
narrowly  escaped,  but  Doctor  Fukuyama  and  military  hospital  nurse 
Sakai  fell  victims  of  the  pursuers. 

Military  hospital  nurse  Kobayashi,  who  escaped  the  calamity  by 
hiding  himself  in  a  hollow  in  the  ground  found  nearby  and  who  per- 
sonally witnessed  the  said  incident,  made  the  following  statement  con- 
cerning the  attack  of  the  Russian  troops  upon  Doctor  Fukuyama  and 
military  hospital  nurse  Sakai: 

Doctor  Fukuyama  was  overtaken  by  the  enemy.  Thereupon  the 
doctor,  as  if  he  had  made  up  his  mind  for  the  worst,  sat  down  on  the 
ground  and  pointed  to  his  arm  badge  of  neutrality.  In  spite  of  this 
the  enemy  cut  at  the  doctor  with  his  sword  and  felled  him  to  the 
ground. 


168  LAWS  OF  LAND   WARFARE.  [PART   II. 

The  military  nurse  Sakai,  being  likewise  surrounded  by  the  enemy, 
pointed  to  his  arm  badge  of  neutrality.  Thereupon  the  enemy  made 
gestures  as  if  to  indicate  that  they  permitted  him  to  proceed  forward, 
and  watching  the  moment  of  unguardedness  on  the  part  of  the  nurse, 
they  gave  a  blow  on  the  head  with  a  sword  and  the  victim  fell  down 
upon  the  ground.  He  saw  these  two  men  fall,  but  could  not  say  whether 
they  were  dead  or  not.  He  saw,  further,  that  several  of  the  soldiers, 
charged  writh  commissariat  duty  of  the  hospital  corps,  were  attacked 
in  the  same  way,  but  could  not  give  detailed  accounts. 

According  to  the  statements  of  the  natives,  the  Russians  cut  off  the 
head  and  upper  limbs  of  Doctor  Fukuyama  and  threw  his  body  in  a 
waggon  and  carried  it  away.  The  cap  and  the  girdle  cloth  were  found 
on  the  spot  where  the  attack  took  place,  the  former  being  badly  dam- 
aged on  the  top. 

Summing  up  the  general  results  of  the  attack,  the  enemy  attacked 
our  defenceless  and  non-resisting  hospital  corps,  seized  or  burned  the 
greater  portion  of  the  hospital  equipment,  stores,  and  other  materials, 
and  out  of  6  officers  and  45  men,  severely  wounded  2,  killed  5  (bodies 
recovered,  showing  sword  cut  from  the  head),  and  made  the  fate  of  41, 
including  Doctor  Fukuyama,  unknown. 

The  enemy,  while  escorting  our  men  to  their  headquarters,  robbed 
them  of  money,  watches,  and  other  treasures,  and  took  away  their  Red 
Cross  arm  badges. 

The  answer  is  as  follows : 

The  Acting  Secretary  of  State  to  the  Japanese  Minister. 

Department  of  State,  Washington,  July  24,  1905. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  note  of  the 
20th  instant,  in  which,  under  the  instruction  of  your  government,  you 
request  this  government  to  bring  to  the  attention  of  the  Imperial  Rus- 
sian Government  a  violation  of  The  Geneva  Convention  of  1864,  alleged 
to  have  been  committed  by  Russian  cavalry  on  May  18  last. 

Copies  of  your  note  and  its  inclosure  have   been  forwarded  to  the 
American  ambassador  at  St.  Petersburg,  and  he  has  been  instructed  to 
transmit  them  to  the  Russian  foreign  office. 
Accept,  etc., 

(Signed)     Alvey  A.  Adee. 

Another  instance  of  Kussia's  violation  of  International  Law 
is  told  by  a  surgeon  who  served  with  the  Second  Army  during 
the  Nanshan  engagement  and  who  returned  home  on  the  23  rd 
May.  He  states  that  the  Japanese  field  hospital  was  estab- 
lished on  that  occasion  at  a  point  more  than  3000  metres  dis- 
tant from  the  position  of  the  Japanese  force,  as  it  is  provided 


CHAP.  IV.,  SECT.  II.]       RUSSIAN   BREACHES.  169 

in  International  Law  that  such  hospitals  must  be  separated  at 
least  2000  metres  from  the  scene  of  operations.  In  spite  of 
this,  and  the  fact  that  a  Eed  Cross  flag  was  flying  above  the 
hospital,  the  Kussians  recklessly  fired  at  the  latter,  to  the  great 
danger  of  the  Japanese  ambulance  corps.  Fearing  that  the 
flag  could  not  be  seen  by  the  Eussians  it  was  hoisted  still 
higher,  only  to  become  the  centre  of  a  more  furious  fire.  It 
is  to  be  sincerely  hoped  that  the  authorities  Will  lose  no  time 
in  lodging  a  protest  with  the  Eussian  Government,  through  the 
proper  channel  against  the  repetition  of  such  barbarous  conduct 
on  the  part  of  the  Eussian  army,  which  has  so  far  made  itself 
notorious  in  its  violation  of  International  Law. 

General  Oku's  report  is  as  follows: 

During  the  Nanshan  engagement  of  May  26,  we  established 
the  First  Field  Hospital  at  Chukiatun  and  were  receiving  the 
wounded,  when  at  10  a.m.  a  Eussian  gunboat  fired  at  the  hos- 
pital from  Dalny  Bay.  Thinking  that  the  Eed  Cross  flag  was 
out  of  the  enemy's  sight,  we  hoisted  it  in  a  conspicuous  place. 
The  Eussians  then  fired  at  it  with  increased  vigour.  One  of 
the  shots  entered  a  sick  ward  and  passed  in  front  of  an  oper- 
ation room,  while  several  shots  grazed  the  flag.  We  were  com- 
pelled to  remove  the  hospital  with  its  inmates  to  Weikiatun. 

II.     Russian  Outrages. 

The  following  document  was  found  among  the  Eussian 
papers  seized  by  the  Japanese  First  Army  during  the  battle  of 
Mukden : 

Order  No.  3  of  the  First  Brigade  of  the  31st  Infantry  Division  of  the 

Russian  Army. 

(Issued  at  Shui-lo-pa-tai  Village,  Feb.  9,  1905.) 

In  order  to  set  up  marks  indicating  the  road  leading  from  the  first 
line  of  positions  to  the  dressing  station,  each  regiment  shall  prepare 
small  white  flags  with  the  greatest  expedition,  their  poles  to  be  of  such 
height  as  not  to  stand  higher  than  1£  ar shine  above  the  ground.  The 
122nd  and  121st  Regiments  shall  erect  these  flagpoles  at  various  points 
between  Huang-ti  Village  and  Erh-tai-tzu  Village,  and  between  the  lat- 
ter place  and  Tien-Shui-pao  Village,  respectively. 


170  LAWS   OF  LAND   WARFARE.  [PART   II. 

Until  the  11th  instant,  ordinary  rations  shall  be  provided  besides 
the  midday  meal  and  a  pound  of  beef  for  each  man.  In  case  of  a  for- 
ward movement,  non-commissioned  officers  and  privates  shall  each  carry 
their  knapsacks,  a  bag  of  hard  biscuits,  tea,  sugar,  a  small  pan,  and  a 
pair  of  warm  boots.    All  other  articles  shall  be  left  in  the  lodgings. 

Each  company  shall  carry  at  least  4  ladders  not  more  than  3  arshines- 
in  length. 

Each  battalion  in  the  reserve  corps  shall  carry  empty  bags  for  mak- 
ing earth-bags,  which  will  be  necessary  when  a  village  shall  have  been 
occupied.  These  empty  bags  may  also  serve  the  purpose  of  deceiving  the 
enemy  by  putting  them  on  our  winter  caps. 

The  non-commissioned  officers  and  men  shall,  beforehand,  be  in- 
structed to  the  effect  that  in  advancing,  if  they  find  en  route  any 
Japanese  soldiers  lying  flat,  especially  those  lying  on  the  back,  they 
shall  not  fail  to  kill  them;  for  the  Japanese  are  wont  to  assume  the 
appearance  of  being  wounded  and  to  fire  on  our  skirmishers  after  allow- 
ing them  to  pass  by.  Warning  shall  also  be  given  in  the  sense  that 
no  faith  is  to  be  put  in  such  cries  as  "  Come  on,"  "  Hither,"  "  Friend," 
etc.  (especially  on  a  dark  night),  for  Japanese  soldiers  are  so  crafty 
as  not  only  to  make  these  utterances,  but  also  sometimes  to  announce 
even  the  numbers  of  our  companies. 

In  order  to  distinguish  friends  from  foes,  watchwords  shall  be  used. 
Such  watchwords  shall  contain  one  or  two  l's,  for  example,  lyulka,  for 
this  soft  sound  being  absent  in  the  Japanese  language,  the  enemy  is 
unable  to  pronounce  it. 

The  regiments  shall  each  offer  prayers  to-morrow. 

(Signed)      Colonel  Muller, 
In  charge  of  the  First  Brigade  of  the  31st  Division  of  Infantry. 

Inspected  by  Lieutenant , 

Acting  adjutant  of  the  122nd  Regiment  of  Infantry. 

On  the  4th  of  July,  1905,  the  Japanese  Imperial  Govern- 
ment gave  an  instruction  to  the  Japanese  Minister  at  Wash- 
ington, who  complied  therewith  through  the  following  letter : *■ 

The  Japanese  Charge  to  Acting  Secretary  of  State  Adee.1 

Legation  of  Japan,  Washington,  July  29,  1905. 
Sir: 

I  have  the  honour  to  inform  you,  under  instructions,  that  during- 
the  battle  of  Mukden  our  First  Army  seized  in  the  battle-field  a  copy 
of  Order  No.  3,  issued  at  Shui-lo-tai  village  on  February  9,  1905  (Febru- 
ary 22),  by  Colonel  Muller,  in  charge  of  the  First  Brigade  of  the  Thirty- 
first  Infantry  Division  of  the  Russian  army,  of  which  copies  of  the 
original  Russian  text  and  an  English  translation   are  herein  enclosed. 

1  Foreign  Relations,  1905,  pp.  619-620. 


CHAP.  IV.;  SECT.  II.]       RUSSIAN   BREACHES.  171 

The  attention  of  the  Imperial  Government  has  been  especially  attracted 
to  the  passage  of  the  above  order  that  "  the  non-commissioned  officers 
and  men  shall  beforehand  be  instructed  to  the  effect  that,  in  advancing,  if 
they  find  en  route  any  Japanese  soldiers  lying  flat,  especially  those  lying 
on  the  back,  they  shall  not  fail  to  kill  them,"  because  they  consider 
that  such  a  measure  is  not  only  warranted  by  the  necessities  of  war, 
but  is  in  direct  contravention  of  the  spirit  of  Art.  VI.  of  The  Geneva 
Convention  and  Art.  XXIII.  of  the  "  regulations  respecting  the  laws  and 
customs  of  war  on  land,"  annexed  to  The  Hague  Convention  of  1899, 
which  have  been  adopted  by  all  the  nations  of  the  civilised  world,  with 
the  object  of  mitigating  the  unnecessary  horrors  of  war.  Even  admit- 
ting, as  is  stated  in  the  order,  that  the  Japanese  are  wont  to  assume 
the  appearance  of  being  wounded  and  to  fire  on  the  Russian  skirmishers 
after  allowing  them  to  pass  by,  there  is  no  ground  whatever  for  justify- 
ing the  said  order,  for,  without  resorting  to  such  drastic  and  compre- 
hensive measures,  there  are  ways,  authorised  by  the  international  usage 
of  civilised  warfare,  of  dealing  with  the  alleged  cases. 

The  Imperial  Government,  therefore,  feel  constrained  again  to  ask  the 
good  offices  of  the  United  States  in  instructing  their  Ambassador  at  St. 
Petersburg  to  call  the  serious  attention  of  the  Imperial  Russian  Govern- 
ment to  the  grave*  infraction  of  International  Convention  by  the  com- 
mander of  their  troops  in  Manchuria. 

The  Washington  Government  referred  it  to  the  St.  Peters- 
burg Government,  which  at  last  gave  a  reply  at  the  end  of 
April,  1906.  The  following  are  the  papers  connected  with  the 
matter : 

American  Embassy,  St.  Petersburg,  March  17,  1906. 
Sir: 

The  Department's  despatches  dated  July  24th  and  August  1st,  1905, 
respectively,  enclosing  papers  from  the  Japanese  Legation  at  Washing- 
ton, bringing  to  the  attention  of  the  Russian  Government  certain  vio- 
lations of  the  Geneva  Convention  alleged  to  have  been  committed  by 
members  of  the  Russian  Army,  were  at  once  referred  to  the  Ministry 
for  Foreign  Affairs. 

I  am  now  in  receipt  of  a  note  replying  to  both  of  the  Japanese 
letters,  and  beg  leave  to  enclose  a  copy  of  the  ministerial  note,  dated 
March  l-14th,  together  with  a  copy  of  the  enclosure  transmitted  therein 
and  a  translation  of  the  same. 

I  have  the  honour  to  be,  sir, 

Your  obedient  servant, 

G.  von  L.  Meyer. 

To  the  Honourable  Elihu  Root, 

Secretary  of  State,  Washington,  D.  C. 


172  LAWS  OF  LAND  WARFARE.  [PART   II. 

Ministere  des  Affaires  Etrangeres. 
Premier  Department,  le  1-14  Mars,  1906.     (No.  1133.) 
Monsieur  L'Ambassadeur  : 

En  me  referant  aux  notes  de  Votre  Excellence  en  date  du  4  aotit 
1905,  je  m'empresse  de  vous  transmettre  une  copie  d'une  communi- 
cation de  l'Etat  Major-General  renfermant  des  renseignements  detailles 
au  sujet  des  accusations  portees  par  le  Government  Japonnais  contre 
un  detachement  de  cavalerie  russe  sous  les  ordres  de  Colonel  Muller 
d'avoir  Commis  le  18  mai  dernier  une  violation  de  la  Convention  de 
Geneve  de  1864. 

Veuillez  agreer,  Monsieur  l'Ambassadeur,  a  l'assurance  de  ma  haute 
consideration. 

(Signg)     Obolensky. 
Son  Excellence  Monsieur  G.  von  L.  Meyer, 
Ambassadeur  des  Etats-Unis,  etc. 

Translation. 

Copy  of  a  Communication  of  the  General  Staff. 

February  16,  1906. 

With  regard  to  the  question  of  the  violation  of  the  rules  of  the 
Geneva  Convention  by  a  detachment  of  Adjutant-General  Mistchenko 
and  by  Colonel  Muller,  Temporary  Commander  of  the  1st  Brigade  of 
the  31st  Infantry  Division,  communicated  by  the  Minister  of  Foreign 
Affairs  to  the  Minister  of  War,  under  date  of  August  12,  1905  (sub. 
No.  4468),  the  Chief  of  Administration  of  the  General  Staff  communi- 
cates as  follows: 

(1)  In  accordance  with  the  report  of  the  Commander  of  the  4th 
Ural  Cossack  Regiment,  it  is  seen  that,  on  May  5,  1905,  the  advance 
guard  of  the  6th  Company  (hundredth)  of  the  said  regiment  was  fired 
upon  from  a  village  (name  unknown) ;  upon  the  approach  of  the  main 
forces,  a  squadron  of  the  enemy's  cavalry  galloped  away  from  the  vil- 
lage, the  firing  continued,  and  a  military  movement  was  observed;  sup- 
posing that  this  was  a  forward  movement,  the  Cossacks  made  an  attack, 
and  upon  advancing  they  saw  commissary  waggons  in  the  village;  some 
of  the  armed  men  who  accompanied  the  waggons  defended  themselves, 
others  tried  to  escape;  a  large  number  were  made  prisoners  and  dis- 
armed. 

A  number  of  the  two-wheeled  waggons  tried  to  make  their  escape  and 
were  pursued;  the  Japanese  attendants  of  the  two- wheeled  waggons  de- 
fended themselves  with  their  arms,  wounding  two  Cossacks  (Terentia 
Budarnikoff 'and  Samuel  Tianoukhin),  and  this  caused  the  Cossacks  to 
follow  up  the  attack,  during  which  they  killed  4  Japanese  and  wounded 
two  others. 

In  this  affair  a  Japanese  surgeon,  who  defended  himself  with  his 
sword  against  the  Cossacks,  was  taken  prisoner.  This  surgeon,  by 
orders  from  Adjutant-General  Mistchenko,  was  released  on  May  7th, 
together  with  15  hospital  nurses,  at  the  village  of  Tsinsiantao,  in  order 


CHAP.  IV.,  SECT.  II.]       RUSSIAN   BREACHES.  ■  173 

to  attend  to  49  wounded  Japanese  belonging  to  the  Reserve  Infantry 
Regiment,  the  hospital  detachment  having  been  equipped  with  ample 
supplies. 

During  the  skirmish  the  sign  of  the  Red  Cross  was  not  displayed; 
that  the  waggons  belonged  to  the  Hospital  Staff  was  discovered  only 
after  they  were  captured. 

Besides  the  hospital  waggons  there  were  also  commissary  depots  in 
the  same  village,  which  were  destroyed. 

According  to  the  report  of  Adjutant-General  Mistchenko,  among  the 
prisoners  made  during  the  skirmish  of  May  5th  there  were  7  men  be- 
longing to  the  Infantry  Division. 

Every  possible  attention  was  afforded  the  prisoners  and  wounded 
during  their  transportation  to  Divisional  Headquarters  in  small  carts; 
before  sending  the  prisoners  to  the  Staff  of  the  Army  they  were  ques- 
tioned as  to  any  claims  or  declarations  they  had  to  make;  these  claims 
amounted  to  25  Rubles,  which  sum  was  paid  to  them. 

In  view  of  the  fact  that  the  raid  of  the  Cavalry  Detachment  of 
Adjutant-General  Mistchenko  was  undertaken  especially  with  a  view 
to  the  destruction  of  all  kinds  of  military  stores  belonging  to  the  enemy, 
the  action  of  the  4th  Ural  Cossack  Regiment  against  the  enemy's 
waggons,  which  displayed  no  signs  of  belonging  to  the  Hospital  Service, 
and  besides  the  attendants  of  which  replied  to  the  attack  with  rifle- 
fire,  must  be  recognised  as  absolutely  correct,  and  no  violation  of  the 
Regulations  of  the  Geneva  Convention  occurred. 

(2)  It  has  been  impossible  to  ascertain  on  what  basis  the  order 
contained  in  the  above-named  letter  was  issued  by  the  temporary  Com- 
mander of  the  1st  Brigade  of  the  31st  Infantry  Division,  inasmuch  as 
the  Headquarters  papers  of  the  Brigade  and  of  the  Staff  of  the  31st 
Infantry  Division  were  lost  during  the  battle  of  Mukden,  and  Major- 
General  Muller  does  not  recollect  issuing  any  such  orders  or  any  reason 
for  so  doing. 

Correct  copy:    (Signature  illegible). 

Many  like  instances  could  be  enumerated,  but  their  shock- 
ing character  forbids.1 

III.     The  Use  of  Dumdum  Bullets. 

The  actual  evidences  that  the  Kussian  Army  used  some 
special  bullets  were  left  on  the  fields  after  the  battle  of  June 
12th,  1904,  near  Fou-huang-cheng ;  the  battle  of  August  2nd, 
near  Ching-chia-tzu,  and  the  battle  of  October  2nd,  near  Liao- 
yang. 

1  See  the  Official  Gazette,  Tokyo,  July  7  and  15,  1904,  "The  Reports  of  General 
Oku." 


174  LAWS   OF   LAND   WARFARE.  [PART  II. 

•  The  following  are  the  details  published  in  the  papers : 

Press  despatches  from  Tsaohokow  dated  the  17th  inst.,  state  that 
among  the  spoils  of  war  seized  by  the  right  wing  of  the  First  Army  at 
Sz'taokeu  on  June  28,  were  a  number  of  ammunition  belts  containing 
"  dumdum "  bullets  for  quick-firing  revolvers.  These  shots  will  be 
shortly  brought  to  Tokyo  and  submitted  to  the  experts  for  examination. 
If  they  prove  to  be  "  dumdum  "  bullets,  the  use  of  which  has  been  pro- 
hibited by  the  Hague  Conference,  Japan  will  file  a  protest  with  Russia 
through  a  third  power.  A  "  dumdum  "  bullet  inflicts  a  most  dangerous 
wound,  and  this  description  of  shot  is  only  used  for  hunting  purposes. 

The  same  despatches  continue  to  report  innumerable  atrocities  com- 
mitted by  the  Russians.  To  quote  one  or  two  instances:  A  private, 
named  Keiichi  Tanaka,  received  three  sword  cuts  at  Likiaputsz'  and 
fainted  from  loss  of  blood.  The  Russians  then  tied  a  rope  round  his 
neck  and  dragged  him  along  for  some  distance.  They  then  playfully 
butchered  him,  four  or  five  Russians  participating  in  this  inhuman 
business.  Another  private,  named  Toramatsu  Hirakawa,  was  wounded 
at  Likiaputsz,  and  fell  to  the  ground.  The  Russians  then  dragged  him 
by  a  rope  tied  to  his  thigh,  but  getting  tired  of  this  performance,  they 
cut  open  an  artery  and  caused  their  prisoner  to  bleed  to  death. 

In  view  of  the  recent  Russian  accusation  of  cruelties  committed  by 
Japanese,  our  officers  at  the  front  are  collecting  material  for  establish- 
ing their  charges  against  the  Russians. 

One  of  our  soldiers  at  the  front  discovered  a  "  dumdum  "  bullet  in 
Western  Tsuhoyen,  north  of  Tiehling,  on  April  21st,  1905.  The  Com- 
mander of  the  division  to  which  the  soldier  belongs,  in  sending  the 
bullet  to  the  General  Staff  Office,  states  that,  owing  to  the  fact  that  the 
cartridge  case  does  not  contain  any  powder  and  that  no  bullet  similar 
to  the  one  in  question,  nor  rifle  to  discharge  the  same,  can  be  discovered 
in  the  neighbourhood,  it  is  difficult  to  say  that  the  enemy  used  it.  But, 
on  the  other  hand,  judging  from  the  fact  that  two  Russian  corpses 
were  discovered  in  the  neighbourhood  of  Tsuhoyen,  it  is  probable  that 
the  enemy  left  the  bullet  there  on  the  occasion  of  their  retreat. 

IV.     The   Wearing   of   Chinese   Costumes   by   the   Russian 

Army — an  Example  of  Russian  Stratagem. 

The  following  official  statement  was  issued  Oct.  19th,  1904 : 

In  a  report  from  the  Commander-in-Chief  of  the  Manchurian  Armies 
the  fact  is  mentioned  that  on  the  4th  of  October,  1904,  a  body  of  in- 
fantry belonging  to  the  3rd  Russian  Regiment  of  Sharpshooters,  all 
wearing  Chinese  costumes,  attacked  our  forces  on  the  road  to  Mukden. 
It  is  also  reported  that  of  late  Russian  soldiers  clad  in  Chinese  cos- 
tumes have  often  approached  our  forces,  and  even  attempted  surprises. 
Moreover,  according  to  different  reports  recently  received,  the  Russian 


-CHAP.  IV.,  SECT.  II.]       RUSSIAN  BREACHES.  175 

Army  is  said  to  be  purchasing,  even  now,  an  enormous  number  of 
Chinese  costumes. 

It  is  generally  admitted  that  combatants  who  are  not  attired  in 
proper  uniform  can  be  punished  as  offenders  of  the  rules  of  war,  and 
should  they  take  part  in  the  actual  fighting  without  wearing  their 
proper  uniform,  not  only  is  their  action  a  violation  of  international 
usages,  as  well  as  an  unlawful  act  contrary  to  the  meaning  of  Art. 
XXIII.  of  the  Convention  concerning  the  Laws  and  Customs  of  War 
on  Land,  but  it  will  prove  a  source  of  great  calamity  to  the  innocent 
Chinese,  who  will  thus  be  exposed  to  danger,  owing  to  the  impossibility 
of  distinguishing  from  a  distance  between  Russian  soldiers  and  the  real 
Chinese. 

Consequently  the  Imperial  Government  has  deemed  it  necessary  to 
call  the  attention  of  the  Russian  Government  to  such  unlawful  action 
on  the  part  of  the  Russian  Army,  and  has  instructed  H.  I.  J.  M.  Min- 
ister at  Washington  to  take,  through  the  United  States  Ambassador  at 
St.  Petersburg,  the  necessary  steps  to  that  effect. 

The  answer  to  this  is  as  follows: 

Mr.  Hay  to  Mr.  Takahira. 

Department  of  State,  Washington,  D.  C,  October  18th,  1904. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  note  of  the 
15th  instant,  in  which  you  state  that  the  Commander-in-Chief  of  the 
Japanese  Armies  in  Manchuria  has  reported  to  the  Imperial  Govern- 
ment that  on  the  4th  of  October,  when  the  Russian  infantry  belonging 
to  the  Third  Sharpshooter  Regiment  attacked  the  Japanese  troops  on 
the  Mukden  road,  they  were  dressed  in  Chinese  costume;  that  Russian 
troops  have  been  found  of  late  on  several  occasions  under  a  similar 
disguise,  when  they  approached  the  positions  of  the  Japanese  army  and 
attempted  night  attacks;  and  that  Russians  are  reported  to  be  actually 
engaged  in  the  purchase  of  a  large  quantity  of  Chinese  clothes. 

You  solicit  the  good  offices  of  this  Government  to  bring  the  above 
statements  to  the  attention  of  the  Russian  Government,  to  the  end  that 
the  necessary  measures  may  be  taken  by  it  to  put  an  end  to  such  irregu- 
lar practices  as  soon  as  possible. 

In  reply  I  have  the  honour  to  say  that  I  have  sent  a  copy  of  your 
note  to  the  American  Charge"  d 'Affaires  at  St.  Petersburg,  with  appro- 
priate instructions. 

(Signed)     John  Hay. 

The  Japanese  Government  also  took  measures  with  the  Chi- 
nese Government  against  this  practice. 

A  despatch  to  the  Jiji,  dated  October  22nd,  1904,  says  that 
Mr.  Uchida,  the  Japanese  Minister  at  Peking,  having  recently 


176  LAWS  OF  LAND  WARFARE.  [PART  II. 

notified  the  Chinese  Government  concerning  the  disguise  of 
the  Kussian  troops  in  Chinese  clothing  and  the  consequent  dan- 
ger of  the  natives  being  fired  on  by  the  Japanese  army,  the 
Peking  authorities  on  Friday  lodged  a  protest  with  M.  Lessar, 
Eussian  Minister,  in  this  connection,  and  also  sent  similar  in- 
structions to  Mr.  Hu,  Chinese  Minister  to  Kussia. 

While  this  was  an  absorbing  problem,  the  author  had  the 
opportunity,  as  a  member  of  the  Committee  of  Investigation, 
Foreign  Department,  of  fully  discussing  with  Messrs.  Terao  and 
Nakamura  the  legal  aspects  of  the  matter. 

Art.  I.  of  The  First  and  Second  Hague  Conventions  con- 
tains the  following  four  conditions  for  army,  militia,  and  vol- 
unteers : 

1.  Having  at  their  head  a  person  responsible  for  his  subordinates; 

2.  Having  a  fixed,  distinctive  badge,  recognisable  at  a  distance; 

3.  Carrying  arms  openly;  and 

4.  Conforming  in  their  operations  to  the  laws  and  usages  of  war. 

Now  the  Eussian  Second  Sharpshooters  fulfilled  all  these 
conditions,  for  they  had  a  commander,  and  their  Chinese  uni- 
form made  them  recognisable  at  a  distance;  the  other  two 
being  equally  adhered  to.  In  the  present  case,  however,  Art. 
I.  is  wholly  inapplicable,  for  the  article  is  no  more  than  an 
enumeration  of  conditions  requisite  for  making  of  persons  com- 
batants, while  the  Eussian  soldiers  under  consideration  were 
already  combatants. 

In  Art.  XXIV.  of  The  Hague  Convention  it  is  stated  that 
stratagems  of  war  and  the  employment  of  the  means  necessary 
to  secure  information  as  to  the  enemy  and  the  theatre  of  mili- 
tary operations  are  lawful. 

E,  Eollins's  commentary  on  the  above  question  is  this: 

"La  redaction  de  L'article  24   (14  ancien)    a  6te*  critiqued. 

"  Pris  a  la  lettre,  cet  article  pourrait  en  effet  etre  interprets  en 
ce  cens  que  tontc  ruse  de  guerre  et  tout  moyen  necessaire  pour  se 
procurer  des  renseignements  sur  Vennemi  et  sur  le  terrain  devraient 
ipso   facto   etre  considered  comme  licites.     II   s'entend  que   telle  n'est 


CHAP.  IV.,  SECT.  II.]       RUSSIAN  BREACHES.  177 

nullement  la  portee  de  cette  disposition,  qui  a  uniquement  pour  objet 
de  dire  que  les  ruses  de  guerre  et  les  moyens  de  se  renseigner  ne 
sont  pas  dgfendus  comme  tels.  Mais  ils  cesseraient  d'etre  licites  en 
cas  de  contravention  a  une  regie  imperative  admise  d'autre  part." 

It  is  clear  that  the  use  of  stratagem  is  restricted  by  some 
other  rules,  and  we  cannot  use  stratagem  inconsistent  with  any 
other  rule  of  war.  The  Eussians'  disguise  in  Chinese  costume 
must  needs  cause  a  certain  amount  of  trouble  to  the  Chinese, 
and  one  is  justified  in  deeming  it  an  illegal  stratagem. 

A  word  is  necessary  here  on  a  weak  point  found  in  Art. 
XXIII.  of  The  Hague  Convention,  in  the  lines :  "  To  make 
unlawful  use  of  flags  of  truce,  or  the  national  flag,  or  military 
insignia,  or  uniform  of  the  enemy,  or  the  distinctive  signs  of 
the  Geneva  Convention."  The  words  "  uniform  of  the  enemy  " 
afford  an  outlet  for  such  a  case  as  that  resorted  to  by  the  Eus- 
sians, and  should  be  complemented  by  the  addition  of  some- 
thing like  "  and  of  a  neutral  nationality  " ;  for  in  such  a  case 
as  this,  the  damage  extends  even  to  a  neutral  nation,  as  well 
as  to  one  of  the  belligerents. 

The  author  quotes  here  the  opinion  of  Professor  Holland : 1 

The  Russian  Use  of  Chinese  Clothing. 
To  the  Editor  of  the  Times. 

Sir:  If  Russian  troops  have  actually  attacked  while  disguised  in 
Chinese  costume,  they  have  certainly  violated  the  laws  of  war.  It  may, 
however,  be  worth  while  to  point  out  that  the  case  is  not  covered,  as 
might  be  inferred  from  the  telegram  forwarded  to  you  from  Tokyo  on 
Wednesday  last,  by  the  text  of  Art.  XXIII.  (t)  of  the  Reglement  annexed 
to  The  Hague  Convention,  "  on  the  Laws  and  Customs  of  War  on  Land," 
this  article  merely  prohibits  "making  improper  use  of  a  flag  of  truce, 
of  the  national  flag  or  the  military  distinguishing  marks  and  the  uni- 
form of  the  enemy,  as  well  as  of  the  distinguishing  signs  of  the  Geneva 
Convention." 

Art.  I.  of  the  Reglement  is  more  nearly  in  point,  insisting,  as  it 
does,  that  even  bodies  not  belonging  to  the  regular  army,  which,  it  is 
assumed,  would  be  in  uniform  (except  in  the  case  of  a  hasty  rising  to 
resist  invasion),  shall,  in  order  to  be  treated  as  "lawful  belligerents," 
satisfy  the  following  requirements,  viz.: 

(1)  That  of  being  commanded  by  a  person  responsible  for  his  sub- 
ordinates; 

1  London  Times,  22nd  Oct.  1904. 


178  LAWS   OF  LAND   WARFARE.  [PART   II. 

(2)  That  of  having  a  distinctive  mark,  recognisable  at  a  distance; 

(3)  That  of  carrying  their  arms  openly;  and 

(4)  That  of  conducting  their  operations  in  accordance  with  the 
laws  and  customs  of  war. 

The  fact  that,  under  special  circumstances,  as  in  the  Boer  war, 
marks  in  the  nature  of  uniform  have  not  been  insisted  upon,  has,  of 
course,  no  bearing  upon  the  complaint  now  made  by  the  Japanese 
Government. 

All  signatories  of  The  Hague  Convention  are  bound  to  issue  to  their 
troops  instructions  in  conformity  with  the  Reglement  annexed  to  it. 
The  only  countries  which,  so  far  as  I  am  aware,  have  as  yet  fulfilled 
their  obligations  in  this  respect  are  Italy,  which  has  circulated  the 
French  text  of  the  Reglement  without  comment;  Russia,  which  has 
prepared  a  little  pamphlet  of  16  pages  for  the  use  of  its  armies  in  the 
Par  East,  and  Great  Britain,  which  has  issued  a  handbook,  containing 
explanatory  and  supplementary  matter,  besides  the  text  of  the  relevant 
diplomatic  acts. 

VI.  Violation  of  International  Law  by  the  Sakhalin 
Army. 

As  the  natural  consequence  of  the  people  of  Sakhalin  Island 
of  the  Maritime  Province  being  enlisted  by  the  Kussian  Gov- 
ernment, numerous  cases  of  acts  violating  International  Law 
appeared  in  that  army. 

On  this  subject  the  Japanese  Imperial  Government  carried 
on  most  exact  investigations,  out  of  which  a  report  was  made, 
and  it  was  presented  to  the  Government  of  the  United  States 
for  their  perusal.  The  report  and  the  correspondences  relative 
to  the  matter  is  here  published.1 

Mr.  Takahira  to  Mr.  Root. 

Legation  of  Japan,  Washington,  October  27th,  1905. 
Sir: 

Under  instructions  from  my  Government,  I  have  the  honour  to  en- 
close herewith  a  copy  of  an  English  translation  of  a  report  received 
by  the  Imperial  Government  from  the  commander  of  the  Japanese 
Army  in  the  island  of  Sakhalin,  accompanied  by  a  supplementary 
statement  of  the  superintendent  of  the  Field  Hospital  attached  to  the 
said  army,  regarding  violations  of  the  laws  and  customs  of  war  by 
the  Russian  army  during  an  engagement  which  recently  took  place  in 
the  island. 

I  beg  leave  to  add  that,  in  the  belief  of  the  Imperial  Government, 

i  Foreign  Relations  of  the  United  States,  1905,  pp.  621-622. 


CHAP.  IV.,  SECT.  II.]       RUSSIAN   BREACHES.  179 

the  practices  of  the  Russian  army,  as  stated  in  the  above-mentioned 
report,  constitute  grave  offences  against  the  stipulation  of  the  Geneva 
and  Hague  Conventions,  of  which  Russia  is  one  of  the  signatory  Pow- 
ers; and  it  is  with  this  belief  in  view  that  the  Imperial  Government 
desires  to  bring  the  above  to  the  notice  of  the  United  States  Govern- 
ment and  invite  their  consideration  thereof,  so  that  the  matter  may  be 
made  a  subject  of  international  discussion  at  such  an  opportunity  as 
may  present  in  the  future. 

Accept,  Mr.  Secretary,  the  renewed  assurances  of  my  highest  con- 
sideration. 

(Signed)     K.  Takahira. 
Honourable  Ehhu  Root, 

Secretary  of  State. 

(Translation.) 

Report  of   the   Commander-in-Chief  of  the  Sakhalin  Army,  Regarding 
Violations  by  the  Russian  Army  of  the  Laws  and  Customs  of  War. 

A  considerable  portion  of  Russian  inhabitants  of  the  Island  of 
Sakhalin  consists  of  criminal  exiles.  It  was  from  among  these  unde- 
sirable inhabitants  that  the  Russian  Government  recruited,  during  last 
year,  their  volunteers  for  the  defence  of  the  island.  As  a  result  thereof 
there  were,  since  the  time  our  (Japanese)  army  landed  on  the  island, 
numerous  instances  of  disregard  and  violation  of  the  laws  and  customs 
of  war  on  the  part  of  Russians,  not  only  as  individual  combatants, 
but  even  as  an  organised  army.  Their  conduct  was  also  against  the 
stipulations  of  The  Geneva  and  Hague  Conventions.  The  military  opera- 
tions of  our  army  were,  on  that  account,  greatly  interrupted,  and  it 
encountered  no  small  difficulty  in  carrying  out  the  rules  of  war.  Of 
this  irregular  and  unlawful  conduct  of  the  Russian  troops  certain  con- 
spicuous cases  are  especially  pointed  out  in  the  following  report,  in 
order  to  invite  the  attention  of  the  world  and  also  to  furnish  references 
for  future  discussion  of  the  matter. 

1.     Use  of  Dumdum  Bullets. 

On  July  10th,  1905,  while  engaged  in  the  occupation  of  Vladimirov- 
kaour,  our  army  captured  from  the  enemy's  cavalry  rifles  supplied  with 
dumdum  bullets.  It  is  also  clearly  proved  by  the  report  of  the  super- 
intendent of  our  field  hospital  (Annex  No.  1)  that,  on  the  11th  and 
12th  of  the  same  month,  during  the  engagement  which  took  place  near 
Dalineye,  and  on  the  22nd,  when  scouts  of  both  armies  met  near  Adra- 
donye,  the  enemy  used  dumdum  bullets. 

Besides,  a  Japanese  by  the  name  of  Sumita  Kametaro,  who  was 
found  a  prisoner  among  the  Russians  when  the  commander  of  the  enemy 
surrendered  on  the  16th  of  July,  witnessed  three  or  four  Russians  carry- 
ing rifles  to  use  dumdum  bullets,  while  a  considerable  number  of  dum- 
dum bullets  were  found  among  the  ammunition  captured  by  our  army 
after  the  engagement  near  Dalineye. 


180  LAWS   OF  LAND   WARFARE.  [PART   II. 


2.     Abuse  or  Improper  Use  of  Red  Cross  Flag  and  Badge. 

The  Russian  troops  seemed  to  regard  the  Red  Cross  emblem  as  a 
necessary  fighting  instrument  to  prevent  danger  to  themselves,  and 
abuse  they  made  thereof  reached  an  inconceivable  extent. 

Our  troops,  while  invading  the  headquarters  of  the  enemy,  found  on 
many  occasions  that  the  latter  were  displaying  a  number  of  Red  Cross 
flags  on  the  roofs  of  houses  which  were  not  employed  for  the  care  of 
the  sick  or  wounded.  In  one  instance,  when  our  army  attacked  Rykoff, 
the  enemy  hoisted  a  Red  Cross  flag  on  the  top  of  an  isolated  house, 
about  3000  metres  west  of  the  place,  where  troops  were  sheltered  under 
its  cover,  and,  setting  machine  guns  close  by  the  house,  fired  at  our 
troops.  Similar  treacherous  conduct  was  repeated  in  Novomihay-loskoe, 
Onor,  and  other  places. 

Besides,  there  were  a  number  of  Russian  soldiers  who  abused  the 
Red  Cross  arm  badge.  On  July  10th,  when  our  army  occupied  Vladi- 
mirovka,  we  found  that  an  excessively  large  number  of  persons  were 
attached  to  the  18th  field  hospital  of  the  Russian  army  there.  As  it 
was  suspected  that  volunteers  and  other  combatants  were  using  the 
Red  Cross  arm  badge  to  escape  danger,  an  investigation  was  made,  and 
it  was  discovered  that  they  were  regular  combatants  who  were  carry- 
ing Red  Cross  arm  badges.  There  is  no  doubt  that  in  the  Russian  army 
the  use  of  the  Red  Cross  arm  badge  was  allowed  for  the  combatants, 
which  fact  was  also  proved  by  the  confessions  of  Russian  soldiers  cap- 
tured by  our  army.  It  is  also  true  that,  in  more  than  one  instance, 
Russian  troops  in  their  retreat  left  behind  them  a  number  of  combatants 
wearing  the  Red  Cross  arm  badges  who  offered  an  armed  resistance 
to  the  advance  of  our  army. 

3.     Irregular  Combatants  without  Uniforms. 

In  spite  of  a  fixed  emblem  being  provided  for,  the  Russian  volunteers, 
a  part  of  the  enemy's  force  in  the  island  of  Sakhalin,  had  no  emblem 
whatever,  and  there  was  no  means  of  distinguishing  them  from  the 
ordinary  people  of  the  place.  For  instance,  on  July  10th,  when  the 
occupation  of  Vladimirovka  was  effected,  a  company  of  the  enemy,  con- 
sisting of  more  than  one  hundred  soldiers  without  uniforms,  assaulted 
our  advance  company.  Our  company,  however,  with  the  assistance  of 
another  company,  succeeded  in  taking  a  large  portion  of  the  enemy's 
soldiers  as  prisoners.  On  investigation  it  was  discovered  that  a  great 
number  of  volunteers,  together  with  ordinary  people  who  took  up  arms, 
were  among  them.  Again,  on  July  19th,  a  scouting  party  led  by  Lieu- 
tenant Watanabe  (Cavalry)  was  suddenly  surrounded  at  a  village 
called  Romanoskoe  by  Russian  volunteers  wearing  the  same  clothes  as 
ordinary  people,  and  received  considerable  injury. 

Evidently  some  of  the  enemy's  volunteers  were  not  furnished  with 
any  uniform  from  the  outset,  while  others  took  off,  in  their  retreat, 
their  emblems  and  concealed  themselves  among  ordinary  people.     Owing 


CHAP.  IV.,  SECT.  II.]   RUSSIAN  BREACHES.  181 

to  such  wanton  disregard  of  uniforms  and  emblems  on  the  part  of  the 
enemy,  which  made  it  impossible  to  distinguish  combatants  from  ordi- 
nary people,  our  army  had  great  difficulty  in  conducting  its  operations. 
Our  army,  however,  with  conscientious  regard  for  the  laws  of  huinanity, 
spared  no  effort  to  prevent  injuries. 

4.     Release  of  Criminal  Prisoners  and  their  Violent  Conduct. 

On  our  army  having  landed  on  the  island  of  Sakhalin,  the  Russian 
army  released  the  criminal  prisoners  kept  at  Alexandrovsk  and  several 
other  places.  These  released  prisoners  entered  upon  a  course  of  lawless- 
ness, and  as  a  result  the  city  of  Alexandrovsk  suffered  greatly.  When 
our  army  occupied  the  city,  as  the  looting  was  still  rampant  there,  we 
organised  a  guard  and  put  the  city  under  its  strict  surveillance.  In 
spite  of  this  fact,  the  Russian  army  circulated  the  scandalous  rumour 
that  the  violent  disturbances  of  the  city  were  caused  by  our  army. 
But  the  fact  that  the  conduct  of  these  released  prisoners  was  extremely 
threatening  is  indisputable,  as  admitted  even  by  Russian  officials  and 
people  at  Rykoff  and  other  places,  where,  on  account  of  occupation  by 
our  army,  they  escaped  injury  from  released  prisoners.  It  is  evident, 
therefore,  that  the  Russian  army  purposely  released  the  prisoners  and 
attempted  to  put  the  blame  of  their  wanton  conduct  on  our  army. 

5.     Inhuman  Insults  Inflicted  upon  the  Dead  and  Wounded. 

On  the  morning  of  July  27th  our  cavalry  scouts  were  surrounded  by 
Russian  troops  at  a  place  south  of  Rykoff,  and  our  commanding  officer, 
Lieutenant  Watanabe,  and  five  others  were  killed.  From  the  fact  that 
on  their  dead  bodies  there  were  found  more  than  ten  rifle,  cutting,  and 
stabbing  wounds,  and  that,  particularly  in  the  rifle  wounds,  there  was 
powder  gas,  it  is  beyond  doubt  that  Russian  soldiers  must  have  either 
savagely  massacred  the  wounded  or  inflicted  barbarous  insults  on  the 
dead.  Such  conduct  is  not  only  against  the  laws  and  customs  of  war, 
but  is  a  most  wanton  disregard  of  the  laws  of  humanity. 

6.     Exhumation  of  the  Buried. 

In  an  engagement  of  August  2nd,  near  Lake  Tonnaicha,  Araya 
Katsusaburo,  a  soldier  of  the  second  grade,  belonging  to  the  5th  company 
of  our  infantry  regiment,  was  killed.  Our  army  buried  the  body  in  the 
wood  nearby  and  set  a  post  over  the  grave.  On  August  10th,  when 
our  army  came  back  to  the  same  place,  after  attacking  the  enemy's 
forces  thereabouts,  it  was  suspected  the  grave  of  the  buried  had  been 
opened.  Subsequently  the  soldier's  seal  and  pocketbook,  which  had  been 
buried  with  the  corpse,  were  discovered  in  a  box  containing  the  private 
effects  of  one  of  the  commanders  of  the  enemy's  forces.  Thus  it  was 
confirmed,  that  the  grave  of  our  soldier,  who  died  an  honourable  death 
on  the  field  of  battle,  had  been  opened  by  the  enemy  and  the  dead  had 
been  robbed. 


182  LAWS  OF  LAND   WARFARE.  [PART  II. 

Annex. 

The  report  prepared  by  Nakamine  Naojiro,  Superintendent  of  the 
Japanese  Field  Hospital,  on  August  24th,  is  as  follows: 

General  Account  of  the  Rifle  Wounds  Inflicted  by  Dumdum  Bullets. 

The  fact  that  there  were  several  kinds  of  rifle  bullets  used  by  the 
enemy  during  the  engagements  in  the  southern  part  of  Sakhalin  is 
clearly  proved  by  the  bullets  left  by  the  enemy  or  captured  by  our 
army.  Particularly  the  use  of  dumdum  bullets  is  a  matter  requiring 
special  attention,  as  the  wounds  inflicted  by  them  are  far  more  injuri- 
ous and  tormenting  than  those  by  modern  coated  bullets. 

The  number  of  the  wounded  received  at  Dalineye  on  July  12th  by 
a  detached  force  of  our  field  hospital  was  seventy-three. 

Of  these  ten  died  on  the  spot,  while  four  others  died  after  being 
received  in  the  hospital,  thus  making  a  death  rate  of  19  per  cent. 

During  this  engagement  the  average  distance  of  our  army  from  the 
enemy's  line  ranged  between  100  and  300  metres.  The  fact  that  the 
rate  of  blind  or  non-penetrating  wounds  was  comparatively  high  for 
rifle  wounds  inflicted  at  such  a  short  distance  shows  that  the  bullets 
used  by  the  enemy  were  not  modern  coated  bullets.  Dumdum  bullets, 
while  their  penetrating  force  is  not  great,  have  a  very  high  destructive 
power  because  of  the  nature  of  the  wounds  they  inflict. 

The  wound  caused  by  dumdum  bullets  is  marked  by  its  extended 
exit,  while  its  entrance  does  not  show  much  marked  injury.  Even  in 
the  case  of  a  perforated  wound  in  a  soft  part,  the  diameter  of  the  exit 
reached  more  than  four  centimetres,  and  the  skin  and  the  sinews  were 
lacerated,  while  in  some  cases  of  fracture  or  bone  injuries,  fragments  of 
bone  scattered  around  into  the  tissues,  leaving  no  trace  of  the  original 
condition  of  the  bones.  The  reason  the  bullet  in  question  causes  such 
terrific  injuries  is  because,  in  hitting  a  hard  substance  like  the  shaft 
of  a  bone,  its  explosive  force  is  effectively  put  into  action,  thereby  caus- 
ing the  disintegration  of  the  melting  lead  bullet,  which  fact  is  to  be 
seen  from  the  fragments  of  lead  which  crept  into  the  spongy  structure 
of  the  bones.  Thus  the  wounds,  particularly  those  received  in  the  face, 
are  so  terrific  that  they  are  extremely  repulsive  in  appearance.  To  show 
how  exceedingly  violent  is  the  destructive  power  of  the  dumdum  bullet, 
a  few  instances  are  cited: 

1.  The  combined  case  of  perforated  bullet  wound  on  the  face  and 
on  the  ankle  joint  of  the  right  leg,  and  the  total  loss  of  the  left 
upper  arm. 

Kurihara  Matazo,  Sergeant,  Infantry,  Reserved  Corps. 

On  July  22nd  the  above  named  was  wounded  by  bullets  while  he 
was  proceeding,  at  a  distance  of  about  100  metres  from  the  enemy's 
front,  on  a  scouting  mission  in  a  place  north  of  Adonidnae  in  Southern 
Sakhalin. 


CHAP.  IV.,  SECT.  II.]       RUSSIAN   BREACHES.  183 

The  perforated  bullet  wound  on  his  face  left  an  inlet  of  about  the 
size  of  the  point  of  an  index  finger  close  by  the  right  side  of  the  nose, 
while  the  exit  left  a  marked  lacerated  wound,  with  considerable  destruc- 
tion of  the  bone  and  soft  part;  that  is  to  say,  the  upper  lip,  where  it 
comes  into  contact  with  the  nose,  was  cut  athwart  up  to  the  left  corner 
of  the  mouth,  thus  showing  valvular  shape,  while  the  roof  of  the  mouth 
and  the  bottom  of  the  nose  were  totally  destroyed,  thereby  exposing 
the  entire  nasal  passage  up  to  the  throat;  and,  further,  the  left  antrum 
was  crushed,  leaving  on  the  left  cheek  a  big,  irregularly  edged,  lacerated 
wound,  with  loss  of  tissues,  and  the  lower  jaw  was  broken  lengthwise 
about  the  median  line.  Further,  a  part  of  the  left  lower  jaw  was  also 
crushed,  and  while  the  fragments  of  bone  from  these  destroyed  parts 
were  mostly  scattered  off,  leaving  no  trace,  a  number  of  small  sharp 
pieces  were  stuck  into  the  lacerated  wound,  thus  practically  destroying 
the  masticatory  and  vocal  organs,  so  that  the  wounded  could  take  only 
liquid  food  by  means  of  a  rubber  tube. 

The  face  of  the  wounded  was  thus  so  badly  scarred  and  deformed 
that  one  could  hardly  look  at  it  without  a  feeling  of  horror. 

The  second  and  third  wounds  need  no  particular  description. 

The  wounded  man,  however,  improved  favourably,  and  he  came  to  be 
able  to  talk  intelligibly. 

2.  The  combined  case  of  perforated  bullet  wound  on  the  face  and 
the  abrasion  of  the  little  finger. 

Tajiro  Ihei,  Soldier,  2nd  Grade,  Infantry. 

The  above  named  was  wounded  on  July  12th  by  a  rifle  bullet,  at  a 
distance  of  about  100  metres  from  the  enemy's  front,  while  he  was  en- 
gaged in  attacking  the  enemy  in  the  neighbourhood  of  Dalineye,  South- 
ern Sakhalin. 

The  perforated  bullet  wound  on  his  face  left  a  remarkably  large 
lacerated  injury.  Although  the  inlet  was  not  quite  recognisable,  from 
the  condition  of  the  wound,  as  well  as  the  statements  of  patient,  it  is 
believed  that  the  bullet  came  from  the  right  side.  The  wound  de- 
stroyed almost  the  entire  lower  jaw,  and  some  of  the  fragments  of  bone 
were  scattered  into  the  bottom  of  the  wound,  while  others,  with  perios- 
teum, were  found  floating  in  the  wound.  The  soft  part  of  the  lower 
jaw  and  the  part  from  the  chin  to  the  angle  of  the  former  were  en- 
tirely torn  off.  The  upper  jaw  bone  was  also  partly  destroyed,  while 
the  frsenum  of  the  tongue  was  torn  and  a  part  of  the  under  side  of  the 
tongue  was  exposed.  On  the  edge  of  the  tongue  there  were  several 
mutilated  wounds  which  caused  inaction  of  the  tongue  and  entirely 
disabled  the  masticatory  and  vocal  organs,  so  that  the  wounded  could 
not  well  take  even  liquid  food.  The  patient  died  on  the  8th  day  after 
receiving  the  wound,  from  exhaustion. 


184  LAWS   OF  LAND   WARFARE.  [PART   II. 

The  Secretary  of  State  to  the  Japanese  Minister.1 

November  6,  1905. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  note  of  the 
27th  ultimo,  enclosing  a  copy  of  the  English  translation  of  a  report 
received  by  the  Japanese  Government  frpm  the  Commander  of  the  Japa- 
nese Army  in  the  Island  of  Sakhalin,  accompanied  by  a  supplementary 
statement  of  the  superintendent  of  the  field  hospital  attached  to  said 
army  respecting  instances  of  the  disregard  and  violation  of  the  laws 
and  customs  of  war  by  the  Russian  Army  during  engagements  which 
recently  took  place  on  that  island. 

The  Department  has  taken  note  of  your  statement  that,  in  the  belief 
of  the  Japanese  Government,  the  conduct  and  the  practice  of  the  Rus- 
sian army,  as  stated  in  the  above-mentioned  report,  constitute  grave 
offences  against  the  stipulations  of  The  Geneva  and  Hague  Conventions, 
and  that  it  is  with  this  belief  in  view  that  the  Japanese  Government 
desires  to  bring  the  above  to  the  notice  of  the  Government  of  the  United 
States,  and  to  invite  its  consideration  thereof,  so  that  the  matter  may 
be  made  a  subject  of  international  discussion  at  such  an  opportunity 
as  may  present  itself  in  the  future. 

Accept,  Sir,  the  renewed  assurance  of  my  highest  consideration. 

Elihu  Root. 

Mr.  Kogoro  Takahira,  etc. 

1  Foreign  Relations  of  the  United  States,  1905,  p.  623. 


CHAPTER   V. 

SPY. 
Sect.  I.     Spy. 

As  to  the  spy,  The  First  Hague  Convention  regulates  as  fol- 
lows : 1 

Art.  XXIX.  An  individual  cannot  be  considered  a  spy  unless,  act- 
ing clandestinely  or  under  false  pretences,  he  obtains,  or  seeks  to  obtain, 
information  in  the  zone  of  a  belligerent's  operations,  with  intent  to 
communicate  it  to  the  opposite  party.  Military  persons,  therefore,  who, 
not  being  in  disguise,  have  penetrated  into  the  zone  of  operations  of 
the  enemy's  army,  with  a  view  to  obtain  information,  are  not  to  be 
considered  as  spies.  In  the  same  manner,  military  persons  or  civilians 
charged  with  the  conveyance  of  despatches  to  their  own  army  or  to 
that  of  the  enemy,  and  executing  their  mission  openly,  are  not  to  be 
considered  as  spies.  To  this  class  belong,  also,  persons  who  are  sent 
in  balloons  to  transmit  despatches,  and,  in  general,  to  keep  up  com- 
munications between  separated  parts  of  an  army  or  territory. 

Art.  XXX.  A  spy  taken  in  the  act  cannot  be  punished  without 
a  preliminary  trial. 

Art.  XXXI.  A  spy  who,  having  rejoined  the  army  to  which  he  is 
attached,  is  subsequently  captured  by  the  enemy,  shall  be  treated  as 
a  prisoner  of  war,  and  shall  incur  no  liability  for  his  previous  acts  of 
espionage. 

Very  few  cases  concerning  the  spy  in  his  proper  sense  oc- 
curred during  the  late  war.  Most  of  the  cases  were  those 
where  Chinese  or  Koreans  obtained  or  sought  to  obtain  infor- 
mation in  the  zone  of  the  Japanese  military  operations,  with 
the  intention  to  communicate  it  to  the  Russians.  It  seems  to 
be,  however,  just  and  reasonable  to  distinguish  between  one  case 
where  the  Russians  acted  as  spies  for  their  own  army  and  one 
other  case  where  Chinese  or  Koreans  did  the  same.  The  former 
did  it  in  the  spirit  of  patriotism  for  their  own  country,  while 
the  latter  did  it  to  advance  their  self-interest.    So  Art.  XXXI., 

1  See  also  Arts.  XXIX.,  XXX.,  XXXI.,  of  The  Second  Hague  Convention  Regarding 
the  Laws  and  Customs  of  Land  Warfare,  1907. 

185 


186  LAWS   OF  LAND   WARFARE.  [PART   II. 

above  mentioned,  is  to  be  applied  to  a  Eussian,  but  it  cannot 
be  applied  to  a  Korean  or  Chinese,  and  should  not  be  exempted 
from  a  previous  act  of  espionage.  Cases  happening  during  the 
late  war  were  as  follows: 

I.     The  Case  of  Kasimil  MiaczynsM. 

An  Austrian  subject,  named  Kasimil  Miaczynski,  coming  to 
Shanghai,  China,  in  the  first  part  of  Nov.,  1904,  had  received 
500  silver  dollars  from  Major-General  Dessino,  of  the  Eussian 
Army,  under  a  contract  with  that  officer  to  act  as  a  spy  for  the 
Eussian  Army. 

After  that  he  went  to  Mr.  Odagiri,  Japanese  Consul-Gen- 
eral of  Shanghai,  and  stated  to  him  that,  although  he  had  made 
a  contract  with  Major-General  Dessino  to  act  as  a  spy  for  the 
Eussian  Army,  yet  he  would  rather  perform  a  similar  service 
for  the  Japanese  Army,  as  he  was  a  socialist.  The  Consul- 
General  replied  that  he  had  nothing  to  propose.  He  then  went 
to  Chefoo,  where  he  made  the  same  proposal  to  K.  Mizuno, 
Japanese  Consul  there,  who  gave  him  the  same  reply  as  M. 
Odagiri  had  given.  Afterwards  he  proceeded  to  Ying-kow 
through  Tientsin,  where  he  was  arrested  by  a  Japanese  gen- 
darme as  a  suspicious  person  and  forwarded  to  Military  head- 
quarters at  Liao-yang,  and  then  to  the  court-martial.  There, 
after  due  trial,  he  was  sentenced  to  death  as  a  Eussian  spy. 

The  sentence  of  the  case  is  as  follows: 

Kasimil  Miaczynski. 

The  accused,  having  received  some  500  dollars  from  a  Russian  Gen- 
eral, Dessino,  at  Shanghai  in  the  first  part  of  Nov.,  1904,  made  a  con- 
tract to  act  as  a  spy  for  the  Russian  Army.  In  order  to  attain  this 
purpose  he  made  a  false  statement  that  he  had  a  desire  to  become  a 
spy  for  the  Japanese  Army,  as  he  was  a  Pole  and  a  socialist.  He 
entered  Ying-kow  within  the  zone  of  the  Japanese  military  operations, 
and  then  proceeded  to  the  line  where  the  headquarters  of  the  Japanese 
Army  were  situated.  This  is  the  clear  fact  shown  by  his  personal 
statement  and  the  documents  provided  by  the  military  commissioners 
in  the  case.  Therefore  he  was  adjudged  guilty  of  espionage  and  was 
sentenced  to  death. 

aist  December,  37th  of  Meiji. 

Court  Martial  of  Liao-yang  Garrison. 


CHAP.  V.,  SECT.  I.]  SPY.  187 

Notwithstanding  the  above  decision,  the  court  did  not  exe- 
cute it  at  once,  but  forwarded  the  offender  to  Yokohama,  where 
he  was  imprisoned. 

The  spy  was  then  released  by  the  Grace  of  the  Japanese 
Emperor  after  the  restoration  of  peace. 

II.     Chinese  Spies. 

A.  The  Case  of  Chen,  the  Magistrate  of  Liao-yang,  and 
Wang,  the  Ex-Magistrate  of  Hai-cheng. 

These  two  Chinese  were  arrested  by  a  Japanese  gendarme 
and  imprisoned  under  sufficient  proof  that  they,  in  send- 
ing their  men  to  the  front,  had  obtained  information  about 
the  arrangement  of  the  Japanese  First  Army,  and  communi- 
cated it  to  the  Eussian  Army  at  Mukden.  (Eeport  of  20th 
Feb.,  1905,  by  the  Manchurian  Army.)  Eegarding  this  case 
the  Chinese  Government  sent  an  official  letter  to  Mr.  K. 
Uchida,  Japanese  Minister  at  Peking,  requesting  the  release 
of  the  two  Chinese  out  of  respect  for  the  Chinese  neutrality. 
Mr.  Na-tung  was  then  despatched  to  the  minister  for  the  same 
purpose. 

On  Feb.  22nd  the  Japanese  Government  gave  the  following 
answer : 

"The  persons  under  consideration  should  be  punished  according 
to  Japanese  Martial  Law,  no  matter  whether  they  were  Chinese,  or 
subjects  of  other  countries,  because  their  acts  were  against  the  Mar- 
tial Law  to  be  enforced  in  the  field." 

In  pursuance  of  this  decision  (according  to  the  report  of 
Manchurian  Army  of  23rd  Feb.  and  5th  day  of  March), 
Chen  was  sentenced  to  death,  but  execution  was  postponed. 
Yet  it  was  necessary  to  keep  him  imprisoned,  for  he  knew  all 
about  the  conditions  and  arrangement  of  the  Japanese  Army. 

The  Chinese  government  still  persisted,  and  requested  that 
Wang  be  delivered  to  Yuan,  the  Governor,  on  condition  that 
they  would  punish  him  severely.  After  negotiations,  the  Chi- 
nese Government  dismissed  him  from  its  post  at  Liao-yang, 
and  put  him  in  jail  for  a  certain  time. 


188  LAWS   OF   LAND   WARFARE.  [PART   II. 

B.  The  Case  of  the  President  of  Bureau  of  Communication 
at  Mukden  and  Fifteen  Other  Officers. 

These  men  were  deemed  guilty  of  espionage,  and  were  con- 
fined on  March  22nd,  1905,  but  upon  special  favour  they  were 
released  on  the  following  day. 

C.  The  Case  of  the  Magistrate  of  Kang-ping  Prefectory. 

On  11th  June,  1905,  Mu,  the  magistrate  of  Kang-ping,  was 
arrested  for  alleged  spying.  On  26th  of  the  same  month  and 
on  the  3rd  of  July  eight  others,  including  Yin,  the  sub-magis- 
trate of  Kang-ping,  Chao,  the  secretary,  and  Kiang,  the  clerk, 
suffered  the  same  fate.  After  the  trial  the  secretary  and  clerk 
were  released  immediately,  but  the  sub-magistrate  was  commit- 
ted to  prison  and  Mu  executed,  for  he  communicated  to  the  Kus- 
sians  information  about  the  activities  and  conditions  of  the 
Japanese  Army.  The  Chinese  Government  made  a  protest  that 
officers,  civil  or  military,  of  a  neutral  state  should  have  the 
privilege  of  being  tried  by  their  own  government  and  under 
the  laws  of  their  own  country,  no  matter  what  their  acts  had 
been;  that  a  belligerent  country  had  no  right  to  dispose  of  the 
matter  at  random,  and  that  in  this  case  of  Chinese  officers 
violating  the  law  of  neutrality  the  Chinese  Government  ought 
to  have  been  notified,  and  Japan's  failure  to  so  notify  the  Chi- 
nese Government  and  her  arbitrary  punishment  of  Chinese  sub- 
jects must  be  considered  as  an  infringement  upon  the  rights 
of  a  neutral  state,  and  that  it  was  a  violation  of  International 
Law. 

The  author  of  this  work  could  not  but  doubt  what  the 
Chinese  Government  did  mean  by  the  so-called  International 
Law.  The  most  advanced  principle  of  International  Law  rec- 
ognises the  right  of  a  belligerent  state  to  punish  a  spy  in  the 
field.  Still  the  Japanese  Government,  taking  a  very  cautious 
step,  directed  the  Minister  of  War  to  make  inquiry.  On  the 
26th  of  Aug.,  1905,  he  replied  thus: 

I  have  the  honour  of  acknowledging  receipt  of  your  esteemed  favour, 
referring  to  the  fact  that  Mu  was  sentenced  to  death  and  a  few  Chinese 


CHAP.  V.,  SECT.  I.]  SPY.  189 

were  imprisoned  by  our  military  officers  in  Manchuria.  In  this  matter 
I  wrote  a  letter  to  the  Commander-in-Chief  there,  ordering  him  to  make 
inquiry.     He  gave  the  following  answer: 

"Lately,  when  a  certain  number  of  Kussian  Cavalry  attacked  the 
right  wing  of  our  army  and  disturbed  the  lines  by  which  the  pro- 
visions were  carried  to  our  soldiers,  those  Chinese,  Mu  and  others, 
guided  the  Russians  so  that  they  could  reach  the  rear  of  our  army, 
and  thus  cause  great  damage  to  us.  They  also,  taking  advantage  of 
their  positions  and  conditions,  communicated  to  the  Russian  army  our 
positions  in  the  zone  of  operations.  According  to  International  Law,  it 
is  evident  that  a  belligerent  state  has  a  right  to  punish  persons  who 
adhered  to  the  enemy  and  gave  them  aid  and  comfort  by  acting  as  spies 
for  them.  It  matters  not  whether  they  are  military  persons  of  a  neu- 
tral state  or  not." 

So  we  consider  the  step  taken  by  Japan  in  this  case  of  Mu  and 
others  just  and  reasonable,  and  she  would  be  justified  in  taking  the 
same  step  whenever  a  like  case  presents  itself. 

Yours  very  truly, 

(Signed)      The  Minister  of  War. 


This  is  the  clear  and  concise  answer  to  this  case  and  coin- 
cident with  the  principles  of  International  Law.  The  Japanese 
Government  replied  in  this  manner  to  the  Chinese  Government. 
In  response,  the  Chinese  Government  contended  that  officers 
of  a  neutral  state,  even  in  the  field,  must  be  protected  by  a 
belligerent  state,  and  not  be  subjected  to  Martial  Law.  In 
case  of  their  acting  as  spies  or  endeavouring  to  prevent  the 
activities  of  a  belligerent  army  the  belligerent  has  a  right  only 
to  arrest  and  confine  the  offenders  and  not  to  kill  them.  The 
author  thinks  that  if  the  Chinese  Government  would  persist 
in  this  principle  it  would  be  concluded  that  the  Chinese  Gov- 
ernment should  be  responsible  for  any  act  by  their  officers, 
and  any  government  would  hesitate  to  assume  any  such  great 
responsibility.  On  the  whole,  there  are  two  errors  in  the  state- 
ment of  the  Chinese  Government:  One  of  fact,  that  they  failed 
to  recognise  that  both  protection  and  benefit  were  conferred 
upon  Chinese  subjects  by  the  Japanese  Government;  the  other, 
of  a  law,  that  the  reasonable  step  taken  by  the  Japanese  Gov- 
ernment against  the  case  of  espionage  was  contested  without 
any  definite  knowledge  of  International  Law. 


190  LAWS   OF   LAND   WARFARE.  [PART  II. 

D.  A  Chinese  Spy  Using  Doves, 

On  board  the  Han-yei  Maru  there  was  a  Chinese  who  acted 
as  a  spy  for  the  Eussian  Army  by  using  doves  to  accomplish 
his  purpose.     The  following  is  the  report: 

Chinese  crew  and  passengers  of  Han-yei  Maru  were  sent  out  from 
Port  Arthur  on  March  31st  by  a  junk.  With  these  Chinese  there  came 
one  Chinese  named  Yung,  who  landed  at  Huang-Chen-tao.  This  man 
had  three  doves  with  him  and  he  seemed  to  have  been  instructed  by 
Makaroff  to  report  through  the  characteristics  of  these  doves  when  the 
Japanese  fleet  was  sighted.  He  acted  clandestinely,  and  obtained  infor- 
mation about  the  Japanese  Navy,  but  upon  entering  Chefoo,  a  neutral 
zone,  the  Japanese  Government  requested  the  Governor  there  to  take 
proper  action  in  accordance  with  the  law  of  neutrality. 

E.  Case  of  Chang. 

Chang-ku-san,  a  Chinese  spy  for  the  Eussians,  was  sen- 
tenced to  death.     The  decision  runs  thus: 

It  is  evident  that  he  gave  great  aid  to  the  Russians,  not  only  assist- 
ing in  the  construction  of  their  fortifications  under  Russian  employ- 
ment, but  also  by  collecting  military  information  by  which  the  opera- 
tion of  the  Japanese  Army  was  greatly  affected.  Therefore  he  deserves 
the  death  penalty. 

However,  since  the  prisoner  has  escaped,  his  entire  estate  should  be 
confiscated. 

(Signed)      Military  Administrator. 


Sect.  II.  Violation  of  Regulations  Concerning  the  Protec- 
tion of  Military  Secrets. 

There  were  many  persons  of  third  states  who  during  the 
Eusso-Japanese  war  were  staying  in  Japan,  and  who  were  pun- 
ished by  the  Japanese  authorities  for  investigating  Japanese 
military  secrets  and  revealing  them  to  foreign  countries.  They 
were  called  spies,  but  they  were  not  spies  in  the  sense  in  which 
that  word  is  used  in  The  Hague  Convention  or  International 
Law.  Neither  were  they  in  disguise,  nor  were  staying  in  the 
zone  of  operations.  The  reasons  that  they  were  punished  by 
Japanese  authorities  were  that  their  revelation  violated  the 
Japanese  regulation  concerning  her  military  secrets. 


CHAP.  V.,  SECT.  II.]      PROTECTION  OF  MILITARY  SECRETS.     191 

There  were  two  illustrative  cases,  the  Bougouin  case1  and 
the  Collins  case.  Although  these  were  not  the  cases  on  Inter- 
national Law,  the  latter  is  here  mentioned  to  prove  that  the 
necessity  of  Japan  in  superintending  the  foreigners  who  came 
to  the  zone  of  operation  or  to  Japan  was  urgent  in  order  to 
keep  the  military  secrets. 

The  Collins  Case. 

In  the  Yokohama  Chiho  Saibansho,  on  Tuesday,  judgment  was  de- 
livered in  the  criminal  case  against  H.  B.  Collins. 

H.  B.  Collins,  aged  40  years,  British  subject,  residing  at  the  Hotel 
de  Paris,  No.  179,  Yamashitacho,  Yokohama,  no  occupation. 

Judgment  is  delivered  by  this  Court  as  follows  in  the  case  in  which 
the  above-named  person  is  charged  with  having  divulged  military  secrets. 

Formal  Adjudication. 

The  accused  is  sentenced  to  eleven  years'  confinement  with  hard 
labour.     The  things  taken  will  be  returned  to  their  respective  owners. 

Reasons. 

The  accused  was  born  in  Hongkong  and  has  lived  at  Yokohama 
since  he  was  an  infant.  He  had  formerly  been  engaged  in  the  news- 
paper business,  and  some  eight  or  nine  years  ago  left  Japan  and  went 
to  China.  He  resided  at  Ryojunko  (Port  Arthur)  for  about  three 
years,  till  about  March  of  1904,  during  which  time  he  married  a  *cer- 
tain  Russian  woman.  About  June  of  the  same  year  he  was,  while  at 
Tientsin,  requested  by  Ogorodonikof,  a  Russian  Colonel  residing  there, 
to  proceed  to  Japan  to  watch  and  report  on  the  military  secrets  of  this 
country.  Complying  with  the  request,  he  got  from  the  Colonel  $1000 
as  expenses  and  a  letter  addressed  to  Major-General  Dessino  of  Russia. 
In  the  beginning  of  July  he  went  over  to  Shanghai  and  saw  Dessino, 
from  whose  notebook  he  took  a  copy  of  two  kinds  of  cipher  codes  to 
be  used  in  communicating  military  secrets.  One  of  the  codes  repre- 
sented Roman  letters  to  be  used  in  writing  letters,  and  the  other  a 
list  of  proper  nouns,  representing  names  of  articles  or  things,  to  be  used 
in  transmitting  telegrams.  About  the  18th  of  the  same  month  he  came 
to  Yokohama  with  these  codes  and  put  up  at  the  Hotel  de  Paris,  No. 
179,  Yamashitacho,  of  this  city.  Since  then  he  has  been  exclusively 
engaged  in  detecting  Japanese  military  secrets  and  matters  belonging 
to  them,  such  as  the  steps  to  be  taken  in  transporting  troops  to  a  cer- 
tain place  for  a  certain  period  of  time,  from  a  certain  date,  their  des- 
tination, kind  of  troops  and  plans  of  the  War  Office  relating  to  their 
despatch.    He  then  wrote  a  letter  embodying  these  facts  in  cipher.    The 

1  The  judgment  in  English  is  mentioned  in  the  Japan  Times,  July  14, 1905. 


192  LAWS   OF  LAND   WARFARE.  [PART  II. 

letter  was  dated  October  24th,  1904,  and  addressed  on  the  envelope  to 
Dessino,  but  it  was  enclosed  in  a  letter  of  request  to  Mondon  in  Shang- 
hai, and  posted  from  Yokohama  on  the  29th  of  the  same  month.  It 
happened,  however,  that  the  letter  was  seized  at  Nagasaki  by  a  mili- 
tary inspector.  The  offence,  therefore,  is  not  at  all  of  a  light  nature. 
Of  the  facts  above  mentioned,  all  of  them,  with  the  exception  of  the 
fact  that  he  had  made  an  effort  to  discover  Japanese  military  secrets 
and  that  he  collected  matters  belonging  to  Japanese  military  secrets 
knowing  that  they  were  so,  are  clear  enough,  since  they  have  been 
admitted  by  the  accused.  The  other  facts  may  be  gathered  from  the 
statements  in  Nos.  1  to  4  of  preliminary  examination,  Exhibit  No.  17 
(as  to  writings  in  cipher  referring  to  cipher  codes  in  preliminary  ex- 
aminations Nos.  2  and  3 )  j  that  the  accused  wrote  a  letter  giving  in 
cipher  the  steps  to  be  taken  in  transporting  troops  to  a  certain  place 
for  a  certain  period  of  time  from  a  certain  date,  their  destination,  kind 
and  number  of  troops,  and  plans  of  the  War  Office  relating  to  the 
despatch  of  the  troops,  and  that  the  letter  was  dated  December  24th, 
1904,  and  addressed  on  the  envelope  to  Dessino  and  enclosed  in  a  letter 
of  request  to  Mondon  in  Shanghai,  and  from  preliminary  examination, 
Exhibit  No.  16,  which  is  a  letter  from  Mishimura  Senoi,  military  in- 
spector at  Nagasaki,  dated  the  4th  November  last,  stating  that  the 
accused's  letter  was  inspected  on  the  18th  of  the  same  month  and  con- 
sidered to  have  related  to  the  divulging  of  military  secrets,  and  that 
therefore  it  was  sent  back;  that  the  accused's  letter  was  seized  by  a 
military  inspector  at  Nagasaki.  That  the  matters  in  the  communica- 
tion above  stated  are  Japanese  military  secrets  is  evident  from  No.  2 
of  preliminary  examination  Exhibit  No.  18,  which  is  a  letter  from 
Terauchi  Seiki,  Minister  of  War,  stating  that  the  matters  mentioned 
in  the  enclosed  letter  dated  the  24th  October,  1904,  are,  considering  the 
present  situation,  military  matters,  required  to  be  kept  strictly  secret 
not  only  at  the  time  of  communication,  but  at  the  present  time.  Indeed, 
not  only  is  it  clear  from  this,  but  even  if  these  matters  themselves  are  ■# 
considered  with  ordinary  common  sense  at  this  time  of  the  Japan- 
Russian  war,  it  can  be  clearly  recognised  that  they  are  military  secrets. 
It  goes  without  saying,  then,  that  the  accused,  knowing  that  they 
were  Japanese  military  secrets,  collected  them  and  despatched  a  letter 
giving  mention  of  these  matters.  The  accused  stated  that,  taking  ad- 
vantage of  a  request  made  by  a  Russian  military  officer  to  detect  Japa- 
nese military  secrets,  he  did  no  more  than  attempt  to  get  money  by 
communicating  unfounded  facts,  and  that  he  never  made  efforts  to  dis- 
cover military  secrets,  and  also  that  he  did  not  know  whether  the 
matters  which  were  communicated  were  military  secrets  or  not,  as  he 
mentioned  only  unfounded  facts.  However,  according  to  the  record  of 
the  first  preliminary  examination  of  Sekimoto  Torajiro,  witness,  it  ap-  j 
peared  that  about  the  19th  or  20th  of  July  he  received  an  order  from 
the  Chief  of  Police  to  watch  the  movements  of  the  accused.  The  wit- 
ness, therefore,  approached  the  accused,  and,  when  an  interview  was  1 
held  on  the  11th  of  September,  he  was  told  by  the  accused  that  he  (the    I 


CHAP.  V.,  SECT.  II.]      PROTECTION   OF  MILITARY  SECRETS.     .193 

accused)  was  selected  at  Tientsin  and  had  come  to  Japan,  that  as  he 
was  to  receive  a  monthly  remittance  of  some  2000  yen  he  could  not 
make  a  report  of  any  matter  which  was  a  mere  rumour,  and  that 
therefore  it  would  be  well  to  have  even  one  or  two  facts  if  they  were 
true.  On  the  16th  of  the  same  month,  when  the  witness  saw  him,  the 
accused  said  that  he  wanted  more  news.  The  witness  asked  him  what 
kind  of  matters  he  wanted,  and  he  said  that  he  wanted  information 
about  the  organisation  of  the  First,  Second,  Third,  and  Takushan 
(Taikosan)  Armies,  and  gave  him  a  chit  (No.  1  of  Procurator's  Ex- 
hibit). The  accused  then  asked  the  witness  where  he  would  keep  the 
chit,  as  it  was  an  important  paper.  The  witness  replied  that  he  would 
put  it  in  his  haramaki,  and  did  so  in  his  presence,  and  the  accused 
seems  to  have  felt  easy.  (In  Preliminary  Examination,  Exhibit  No.  5, 
which  is  a  pocketbook  taken  from  the  accused,  there  is  a  mention,  under 
date  of  September  16th,  of  the  fact  that  he  gave  Sekimoto  a  general 
outline  of  his  scheme.  This  corresponds  to  Sekimoto's  evidence  under 
review.)  The  witness  also  stated  that  after  the  accused  had  given  him 
this  chit  he  began  to  place  great  confidence  in  him,  and  was  diligently 
engaged  in  the  detection  of  secrets.  On  the  19th  of  October  the  accused 
told  witness  that  the  former  could  not  make  any  useless  communica- 
tion. The  witness  asked  him  what  kind  of  matters  he  was  going  to 
communicate.  The  accused  replied  that  as  there  would  be  no  doubt 
that  Kuropatkin  would  make  a  counter-attack  on  Liaoyang,  he  wanted 
to  know,  first,  how  many  men  were  really  killed  and  wounded  on  the 
Japanese  side  at  the  battles  at  Liaoyang  and  other  places;  secondly, 
whether  the  Japanese  army  would  make  a  further  attack  or  take  win- 
ter quarters  at  Liaoyang  or  other  places;  thirdly,  whether  preparations 
for  an  attack  on  Vladivostock  would  be  taken  or  not.  The  accused 
said  that  were  these  three  points  discovered  and  reported  upon  it  would 
not  be  necessary  for  him  to  do  any  more  work.  He  therefore  asked  the 
witness  to  investigate  these  points  without  fail.  From  the  above  state- 
ment of  the  witness  it  is  not  difficult  to  see  how  strenuously  the  accused 
engaged  himself  in  finding  out  Japanese  military  secrets.  Moreover,  the 
accused's  wife,  a  Russian  woman,  having  left  Japan,  he  had  nobody  to 
provide  for.  In  despatching  the  accused,  a  Russian  officer  would  not 
be  so  unwise  as  to  give  him  a  thousand  dollars  or  allow  him  to  take 
a  copy  of  the  ciphers  without  first  ascertaining  his  determination  and 
ability.  Moreover,  according  to  the  admission  made  by  the  accused, 
the  arrangement  was  that  a  remittance  would  be  made  to  him  from 
the  officer  according  to  the  value  of  the  communication.  It  is  therefore 
easy  to  see  that  if  the  matters  communicated  by  the  accused  were  un- 
founded or  well  known,  such  matters  being  worthless  the  officer  would 
not  have  sent  him  any  compensation. 

It  may  be  considered,  therefore,  quite  natural  for  the  accused  to  have 
done  all  in  his  power  to  secure  military  secrets.  It  is  certainly  clear 
that  the  plea  of  the  accused  is  groundless  when  to  the  above  evidence 
the  facts  admitted  by  the  accused  are  added,  namely,  the  mode  of 
communication   explained   above,  the  experience   he  has   in  newspaper 


194  LAWS   OF  LAND  WARFARE.  [PART  IL 

business,  and  the  fact  that  he  has  had  no  occupation  since  he  came  to 
Yokohama. 

At  the  same  time  there  is  not  the  least  doubt  that  the  offence  of 
the  accused  is  not  of  a  light  nature.  It  is  proper,  therefore,  to  recog- 
nise the  facts  of  the  offence  above  stated. 

The  act  of  the  accused  falls  within  the  purview  of  Art.  I.  of  the 
Law  relating  to  the  Protection  of  Military  Secrets,  which  says  that 
"  persons  detecting  and  collecting  information,  drawings,  documents,  or 
things  which  are  military  secrets,  knowing  that  they  are  of  such  nature, 
shall  be  punished  by  major  imprisonment."  Therefore  the  accused 
should  be  punished  accordingly.  The  Public  Procurator  argued  that 
the  act  of  the  accused  falls  within  the  scope  of  Clause  1  of  Art.  CXXI. 
of  the  Criminal  Code,  but  considering  the  spirit  of  legislation  and  the 
meaning  of  the  provision  of  the  Code,  it  is  clear  that  it  cannot  be 
applicable  to  persons  having  no  nationality  in  Japan,  that  is  to  say, 
to  foreigners  like  the  accused.  Therefore  the  present  case  does  not  be- 
long to  the  special  jurisdiction  of  the  Court  of  Cassation.  Counsel  for 
the  accused  stated  that  the  same  generosity  with  which  the  countrymen 
of  the  enemy  have  been  treated  should  be  extended  towards  the  accused. 
The  present  case,  however,  does  not  refer  to  a  question  of  International 
Law  or  a  law  of  humanity.  The  Court,  therefore,  in  punishing  the  ac- 
cused according  to  the  provisions  of  law,  reports  that  the  offence  of 
the  accused  being  of  a  most  dangerous  nature,  there  is  no  ground  for 
the  consideration  of  circumstances  provided  for  in  the  Criminal  Code* 
As  to  the  things  taken,  Art.  202  of  the  Code  of  Criminal  Procedure  is, 
applied  and  decision  given  as  in  the  Formal  Adjudication. 
Public  Procurator  Miki  Itaro  attended  the  case. 

Given  at  the  First  Criminal  Division  .of  the  Yokohama  District  Court,, 
this  24th  day  of  January,  the  38th  year  of  Meiji  (1905). 

Danno  Yoshiyuki,  Judge  President. 

Hasegawa  Kiktjtaro,  Judge. 

Nagoya  Umesaburo,  Judge. 

Hanagami  Fukuzo,  Clerk  of  the  Court* 


CHAPTEE   VI. 
SIEGES    AND    BOMBAKDMENTS. 

Sect.  I.     Alleged  Bombardment  of  Hospitals  in  Port  Arthur. 

On  the  14th  of  December,  during  the  partial  armistice  for 
the  collection  of  the  dead,  General  Stoessel  sent  the  following 
letter  in  English  to  General  Baron  Nogi : 

Port  Arthur,  1-14  Dec,  1904. 
Sir: 

I  have  the  honour  to  inform  you  that  your  artillery  is  firing 
at  our  hospitals,  which  are  distinctly  marked  with  the  Red  Cross  flags. 
These  flags  must  be  visible  from  the  position  where  your  guns  are 
placed,  and  therefore  I  beg  you  to  prohibit  it  from  the  point  of  view 
of  respect  towards  our  warriors,  who  are  honourably  fighting  with 
your  army  and  do  not  merit  extermination,  being  already  wounded 
and  lying  in  the  hospitals  under  the  Red  Cross  flag.  Amongst  them 
are  also  Japanese  wounded  warriors. 

I  avail  myself  of  this  opportunity  of  reassuring  you  of  my  senti- 
ments of  esteem. 

(Signed)     General  Stoessel, 

Commander-in  Chief  of  the  Fortified 
District  of  Kwantung  Province. 

The  next  day  General  Balashoff  came  under  a  parlementaire 
flag  to  the  outpost  of  the  Japanese  army  to  the  south  of  Suishi- 
ying,  on  the  road  leading  from  Kinchow  to  Port  Arthur.  After 
presenting  the  following  letter  in  English  addressed  to  General 
Baron  Nogi,  he  went  away,  leaving  word  that  he  would  come 
again  the  next  day  at  1  p.m.  to  the  same  place: 

Port  Arthur,  2-15  December,  1904. 
Sir: 

I  intrust  the  bearer  of  this,  the  chief  in  command  of  the  Red  Cross 
and  Egermeister  of  His  Imperial  Majesty — Balashoff — to  negotiate  with 

195 


196  LAWS   OF  LAND   WARFARE.  [PART   II. 

Your  Excellency  about  the  means  of  preventing  danger  to  the  hospitals 
during  the  bombardment  of  the  town;  but,  naturally,  at  the  same 
time,  taking  into  consideration  your  right  to  secure  the  success  of 
your  military  actions. 

I  have  the  honour  to  be,  sir,  your  obedient  servant, 

(Signed)     General  Stoessel, 
Commander-in  Chief  of  the  Fortified 
District  of  Kwantung  Province. 

These  two  letters  reached  the  headquarters  of  the  Invest- 
ing Army  at  the  same  time  on  the  15th  of  December,  and  a 
military  council  was  immediately  held.  The  answer  of  Gen- 
eral Baron  Nogi  to  General  Stoessel's  letter  of  the  14th  of 
December  was  drawn  up  as  follows: 

Headquarters  of  the  Besieging  Army, 

16th  December,  1904. 
Sib: 

I  have  the  honour  of  assuring  Your  Excellency  that  the  Japa- 
nese Army  has  always  respected  humanity  and  international  conven- 
tions, so  that  on  no  single  instance  since  the  beginning  of  the  siege 
have  our  guns  been  ranged  intentionally  against  buildings  and  ves- 
sels marked  with  the  flag  of  the  Red  Cross.  But  the  greater  part 
of  the  interior  of  the  fortress  is  invisible  from  the  positions  of  our 
artillery,  and  as  we  all  know,  the  shells  do  not  always  hit  the  points 
aimed  at.  Moreover,  owing  to  the  long  duration  of  your  brave  de- 
fence, the  deviation  of  our  artillery  increases  from  day  to  day,  so  that 
to  my  great  regret  I  cannot  be  absolutely  sure  the  shells  do  not 
occasionally  strike  at  places  entirely  unexpected  by  us. 

I  avail  myself  of  this  opportunity  of  reassuring  you  of  my  senti- 
ments of  esteem.  ,_..       _%     ^T 

(Signed)     Nogi, 

Commander-in-Chief  of  the  Army 

Besieging  Fort  Arthur. 

Major  Suyejiro'Saito,  a  staff  officer,  was  chosen  as  delegate 
of  the  Japanese  Army,  and  duly  authorised  to  confer  with 
General  Balashoff.  To  him  were  attached  two  civil  officers, 
Dr.  Nago  Ariga  and  Mr.  Keijiro  Kawadzu,  who  were  to  act 
as  interpreters.  The  meeting  took  place  at  the  appointed  time 
and  place,  and  the  negotiations  were  carried  on  in  English, 
Sub-Lieutenant  Malchenko  acting  as  interpreter  on  the  Eus- 


CHAP.  VI.,  SECT.  I.]      SIEGES   AND   BOMBARDMENTS.  197 

sian  side.  Eloquently  describing  the  disaster  caused  by  our 
shells  falling  on  the  hospitals  two  days  before  and  killing  or 
wounding  even  physicians  and  attendants,  General  Balashoff 
strove  to  make  the  Japanese  delegate  consent  to  making  large 
sections  of  the  old  and  the  new  towns  in  Port  Arthur  neutral, 
so  that  the  Japanese  artillery  should  not  have  the  right  to 
range  their  pieces  against  any  of  the  buildings  in  these  quar- 
ters. He  assured  the  Japanese  officers  on  his  word  of  honour 
that  no  healthy  soldiers  should  be  lodged  in  any  of  the  build- 
ings situated  therein,  so  that  the  Japanese  Army  would  have  no 
need  of  firing  at  these  quarters.  But  Major  Saito  remained 
firm  in  his  protestation  that  there  were  important  military 
buildings  in  these  very  quarters,  as,  for  example,  the  Central 
Provision  Depot,  the  flour  mill,  etc.,  so  that  the  Japanese 
must  reserve  to  themselves  the  right  to  decide  which  buildings 
to  fire  on.  General  Balashoff  pretended  that  the  Central  Pro- 
vision Depot  was  now  empty  and  that  it  was  his  intention  to 
use  the  building  as  a  hospital  hereafter.  As  to  the  flour  mill, 
he  added,  no  further  use  would  be  made  of  the  machinery, 
there  being  enough  bread  for  six  months  to  come.  He  even 
proposed  to  produce  a  document  signed  by  General  Stoessel 
himself,  guaranteeing  that  none  of  the  buildings  within  the 
quarters  assigned  should  be  used  for  military  purposes.  Major 
Saito,  in  the  name  of  the  Japanese  Eed  Cross,  firmly  refused 
entering  into  any  kind  of  contract  with  regard  to  the  matter, 
and  simply  consented  to  look  upon  the  proposal  as  a  wish  of 
the  Russian  Army.  Thereupon  General  Balashoff  asked  whether 
the  Japanese  Army  would  receive  a  plan  of  Port  Arthur  show- 
ing the  positions  of  the  hospitals,  in  the  event  of  it  being 
brought  to  the  Japanese  outpost  the  next  day  but  one.  As  the 
production  of  such  a  plan  might  be  looked  upon  as  the  notifica- 
tion made  according  to  Art.  XXVII.  of  the  Regulations  re- 
specting the  Laws  and  Customs  of  War  on  Land,  signed  at  the 
Hague  in  1899,  Major  Saito  did  not  refuse  to  accept  it,  but 
expressly  stated  that  the  Japanese  Army  would  look  on  it 
merely  as  an  expression  of  the  wish  of  the  Russian  Army. 


198  LAWS   OF  LAND   WARFARE.  [PART  II. 

The  negotiation  was  here  ended,  and  a  free  conversation 
was  begun,  during  which  Major  Saito  handed  to  General  Ba- 
lashoff five  large  mail  bags  containing  thousands  of  letters  ad- 
dressed to  the  officers  and  men  in  Port  Arthur,  which  the 
Japanese  Army  had  seized  elsewhere.  It  was  an  act  of  kind- 
ness unheard  of  in  the  history  of  any  siege,  and  the  joy  of  the 
Eussian  general  was  intense.  He  said  that  as  a  return  for  this 
act  of  kindness  on  the  part  of  the  Japanese  Army,  he  would 
permit  the  Japanese  wounded  soldiers  in  the  Eussian  hospitals 
to  write  and  send  letters  to  their  dear  ones  at  home. 

In  the  afternoon  of  the  18th  of  December  General  Bala- 
shoff again  came  to  the  outpost  of  the  Japanese  army  and 
handed  in  to  the  Japanese  officer  the  plan  in  question,  together 
with  an  authorised  copy  of  the  orders  issued  by  General  Stoessel 
regarding  hospitals,  accompanied  by  an  English  translation, 
which  runs  as  follows: 

Obdee  No.  926. 
To  the  troops  of  Kwantung  fortified  district, 

Dec.  4,  1904,  Port  Arthur. 

All  the  flags  of  the  Red  Cross  hospitals  on  different  lazarets  and 
bandage  places,  especially  in  the  New  Town,  are  to  be  removed,  and 
instead  the  walls  of  those  buildings  shall  be  painted  with  a  Red  Cross 
on  a  white  circle,  the  Red  Cross  flags  to  fly  only  on  the  hospitals, 
which  ["  and  "  instead  of  "  which  "  in  the  Russian  original]  must  be  big. 

The  barracks  of  the  9th  East  Siberian  Sharpshooter  Regiment  to 
be  handed  over  to  Egermeister  Balashoff  also  for  the  use  of  hospitals. 
I  believe  that  after  the  negotiations  of  Egermeister  Balashoff  with  the 
representative  of  the  Japanese  Commander-in-Chief  of  the  Troops,  the 
Japanese  will  be  more  careful  not  to  fire  at  our  hospitals  where  the 
sick  and  wounded  are  lying. 

Order  No.  928. 
I  order  the  intendant  of  fortress:    (1)   To  hand  over  all  the  empty 
store  buildings  adjacent  to  the  hospital  of  Virgin  Mary's  Association 
of  the  Red  Cross  to   General  Balashoff  for  the  organization  of  hospi- 
tals;   (2)   All  work  at  the  mill  of  Tifuntai  is  to  be  stopped. 

(Signed)     Adjutant-General  Stoessel, 
Chief  of  the  Kwantung  Fortified  District. 

Correct  with  the  original, 

(Signed)     Colonel  Reis. 


CHAP.  VI.,  SECT.  I.]      SIEGES   AND   BOMBARDMENTS.  199 

After  this  there  was  a  great  decrease  in  the  number  of  Red 
Cross  flags,  which  had  been  quite  irregular  before,  being  some- 
times more,  sometimes  less,  but  when  the  Japanese  artillery 
fired  at  the  barracks  numbers  of  healthy  soldiers  were  seen  to 
hurriedly  leave  the  latter  and  take  shelter  in  the  Red  Cross  Hos- 
pitals. The  scene,  distinctly  visible  from  the  observatory  on 
the  so-called  203-metre  height  ("  High  Mountain "  of  the 
Russians),  was  as  comic  as  it  was  illustrative  of  the  way  in 
which  the  Russian  soldiers  regard  the  Red  Cross  flag. 

Hereupon  Major-General  Ijichi,  Chief  of  the  Staff  of  the 
Investing  Army,  sent  to  Colonel  Reis  the  following  letter,  dated 
22nd  December,  1904: 

Sir: 

I  hereby  acknowledge  the  receipt  of  the  plan  showing  the  posi- 
tions of  the  hospitals,  and  of  the  copy  signed  by  you  of  the  Orders 
No.  926  and  No.  928,  sent  by  your  army  to  our  outpost  on  the  after- 
noon  of  the    18th  instant. 

Availing  myself  of  this  opportunity,  I  have  the  honour  of  making 
clear  to  you,  once  for  all,  the  position  we  take  with  regard  to  the 
question  of  placing  the  hospitals  out  of  danger  during  the  bombard- 
ments. 

First:  As  stated  in  the  letter  of  General  Baron  Nogi  to  His  Ex- 
cellency General  Stoessel  on  the  16th  instant,  the  Japanese  Army  will 
under  no  circumstances  range  its  artillery  intentionally  against  hos- 
pitals displaying  the  sign  of  the  Red  Cross,  but  as  the  buildings 
marked  as  hospitals  on  the  plan  are  situated  in  the  midst  of,  and 
close  to,  the  buildings  which  we  deem  it  necessary  to  bombard,  we 
cannot  be  absolutely  sure  of  our  shells  not  accidentally  striking  them 
occasionally,  owing  to  the  deviation  of  our  ordnance. 

Secondly:  As  declared  by  the  delegate  of  our  army  in  the  nego- 
tiations of  the  16th  instant,  the  fact  of  our  receiving  the  plan  does 
not  imply  our  acceptance  of  the  obligation  of  not  firing  intentionally 
at  all  the  buildings  marked  as  hospitals  therein,  but  we  reserve  to 
ourselves  the  right  of  ranging  our  ordnance  against  such  of  them  at 
least  as  come  under  the  following  cases: 

(a)  In  case  we  know  by  information  and  direct  observation  that 
a  particular  building  is  not  actually  used  as  a  hospital. 

(b)  In  case  we  know  by  the  same  means  that  there  is  a  violation 
of  the  Geneva  Convention  with  regard  to  a  particular  building,  in 
spite  of  its  being  actually  used  as  a  hospital. 


200  LAWS   OF   LAND   WARFARE.  [PART   II. 

I  regard  the  correspondence  concerning  the  present  question  as 
closed,  and  remain,  sir,  yours  respectfully, 

(Signed)      Ijichi, 
Chief  of  the  Staff  of  the  Army  Besieging  Port  Arthur. 
To  Colonel  Reis, 

Chief  of  the  Staff  of  the  Fortified  District  of  Kwantung  Province. 

The  description  below  is  believed  to  be  most  trustworthy 
and  nearly  impartial. 

The  Red  Cross  at  Port  Arthur. 
[By  Edwin  Emerson,  Jr.] 

General  Stoessel's  repeated  protests  on  behalf  of  the  Red  Cross  Hos- 
pitals at  Port  Arthur,  which  have  had  to  suffer  from  the  bombardment 
of  the  Japanese,  at  first  blush  appear  to  be  well  founded. 

All  the  hospitals  in  Port  Arthur,  with  the  exception  of  two  small 
field  lazarettos  which  lie  in  exceptionally  well-sheltered  positions,  have 
throughout  suffered  more  or  less  from  stray  shells.  As  early  as  Sep- 
tember, General  Balashoff,  the  director  of  the  Red  Cross  work  in  Port 
Arthur,  voiced  the  same  complaints  to  me  against  the  alleged  ruthless- 
ness  of  the  Japanese  that  he  afterwards  expressed  in  the  formal  mani- 
festo brought  to  Chefoo  by  the  Rastoropny  and  in  the  protest  which 
he  verbally  expressed  through  Major  Saitoof  to  General  Nogi's  staff 
during  one  of  the  white  flag  interviews  in  the  middle  of  December. 

General  Balashoff,  on  the  last  day  of  September,  pointed  out  to  me 
the  damage  done  by  a  Japanese  shell  to  the  roof  of  the  largest  Red 
Cross  Hospital  in  Port  Arthur.  He  also  pointed  out  two  large  breaches 
knocked  into  the  strong  wall  enclosing  the  hospital  grounds  by  plunging 
projectiles  that  had  dropped  over  the  hospital.  Before  this  time  he  had 
become  so  alarmed  for  the  safety  of  the  hospital  patients  that  he  had 
constructed  a  long  tunnel  for  bomb-proof  wards  underground,  but  the 
arrangements  there  were  necessarily  so  primitive  and  insalubrious  that 
no  patients  had  as  yet  been  moved  from  the  threatened  hospital. 

On  that  occasion  General  Balashoff,  who  impressed  me  as  a  highly 
excitable  old  gentleman,  gave  free  vent  to  his  indignation  against  the 
Japanese  and  what  he  termed  "  their  ruthless  savagery."  As  General 
Balashoff  expressed  himself  both  in  French  and  German  with  equal 
fluency,  addressing  his  remarks  first  in  French  to  my  French  compan- 
ion and  afterwards  in  German  to  me,  there  was  no  mistaking  his  words. 
He  pointed  to  the  high  gable  of  the  roof,  where  flew  a  Red  Cross  flag 
measuring  apparently  six  feet  square,  and  exclaimed :  "  Can  anybody 
miss  seeing  that  flag?  " 

I  ventured  to  suggest  to  him  that  a  larger  flag  would  be  seen  far- 
ther, and  that  two  light-coloured  chimneys  on  the  roof  might  have  the 
effect  of  obscuring  the  flag. 


CHAP.  VI.,  SECT.  I.]      SIEGES   AND   BOMBARDMENTS.  201 

General  Balashoff,  however,  was  firmly  convinced  that  the  shots 
which  struck  the  hospital  had  been  deliberately  aimed  at  it.  He  was 
strengthened  in  this  opinion  by  the  fact  that  several  shots  likewise  had 
struck  various  parts  of  his  Red  Cross  headquarters,  nearby  a  former 
Chinese  temple,  on  the  roofs  of  which  various  Red  Cross  flags  were 
prominently  displayed.  One  of  the  shots,  early  in  the  autumn,  had 
entered  the  stables  where  the  ambulance  horses  were  kept,  killing  sev- 
eral of  them,  so  that  all  the  horses  had  to  be  removed  to  bomb-proof 
shelters  underground,  where  I  saw  them. 

Standing  on  the  roof  on  his  improvised  machine  shop,  General  Bala- 
shoff pointed  out  to  me  no  less  than  seven  spots  within  the  precincts  of 
the  Red  Cross  headquarters  where  Japanese  projectiles  or  fragments  of 
shells  had  done  visible  damage.  I  picked  up  one  piece  of  shell  for  a 
souvenir. 

General  Balashoff,  learning  of  our  impending  departure  from  Port 
Arthur,  requested  my  French  friend  and  myself  to  carry  a  formidable- 
looking  document,  in  which  he  had  embodied  his  grievances  on  behalf 
of  the  Russian  Red  Cross  Society  at  Port  Arthur  against  the  Japanese. 
As  we  were  not  despatch  bearers,  and  for  other  obvious  reasons,  we 
begged  to  be  excused. 

One  day  afterwards,  when  the  junk  in  which  we  had  left  Port  Arthur 
had  been  captured  by  the  Japanese,  and  we  ourselves  had  been  taken 
to  General  Nogi's  headquarters  before  Port  Arthur,  we  met  Majors 
Saito  and  Yamaoka  of  General  Nogi's  staff,  the  two  officers  who  were 
selected  to  serve  as  parliamentaries  during  the  white  flag  interviews 
that  occurred  before  this  time  and  afterwards. 

In  conversation  with  these  officers  we  told  them  of  the  complaints 
concerning  their  artillery  practice  made  by  General  Balashoff.  Major 
Yamaoka  denied  emphatically  that  any  of  the  Japanese  gunners  had 
ever  knowingly  fired  in  the  direction  of  any  Red  Cross  flag.  He  asked 
us  to  describe  to  him  the  exact  locality  of  the  Russian  Red  Cross  Hos- 
pital in  Port  Arthur.  Our  description  seemed  to  bewilder  him.  At 
last  he  called  for  a  staff  map,  giving  a  complete  plan  of  the  city,  with 
all  its  streets  and  prominent  buildings.  On  this  map  I  marked  the 
location  of  the  hospital  and  of  the  headquarters  of  the  Red  Cross  Society 
with  a  red  pencil. 

"  The  building  you  have  indicated,"  said  Major  Yamaoka,  "  is 
marked  on  our  map  as  Alexeieff's  Government  House.  If  it  can 
be  seen  from  any  of  our  positions,  and  if  the  Red  Cross  flag  can  be 
discerned  on  it,  you  may  rest  assured  that  the  proper  orders  will 
be  issued  to  the  proper  officers  to  prevent  the  repetition  of  such  a 
mistake." 

Major  Yamaoka  then  told  us  of  a  number  of  instances  where  the 
Russians  had  failed  to  respect  Japanese  Red  Cross  flags,  and  other 
shocking  instances  of  the  maltreatment  of  Japanese  wounded  men  by 
Russians.  Similar  stories  about  the  Japanese  had  been  told  to  us  by 
the  Russians. 

I    remembered,   for   instance,  the  indignation  of  Count  von  Lerche, 


202  LAWS   OF   LAND   WARFARE.  [PART   II. 

the  chief  of  the  first  Red  Cross  train  formerly  running  between  Harbin 
and  Port  Arthur,  whom  I  had  met  several  months  before  at  Mukden. 
This  gentleman  claimed  that  all  the  Russian  Red  Cross  trains  had  been 
fired  upon  by  the  Japanese.  In  corroboration  of  this  he  showed  me  the 
bullet  marks  on  the  steel-plated  sides  of  the  passenger  cars  that  made 
up  the  last  train  that  ran  out  of  Port  Arthur.  This  train,  he  said, 
had  carried  a  number  of  invalids  and  wounded  men  from  the  early 
naval  bombardments,  and  injured  survivors  from  the  Petropavlovsk  dis- 
aster. By  his  orders,  he  said,  Red  Cross  flags  had  been  hoisted  over  the 
cars  that  carried  the  sick  men.  Yet  this  had  not  hindered  the  Japa- 
nese forces  in  the  field  from  lustily  firing  on  the  train.  Several  of  the 
invalids  in  the  upper  berths  had  thus  received  additional  injuries. 
More  would  have  been  wounded  had  they  not  crouched  down  on  the 
floor  of  the  cars,  where  they  were  sheltered  by  the  steel  sheathing  out- 
side. The  train  only  escaped  capture,  added  Count  von  Lerche,  thanks 
to  its  plucky  engine-driver,  who  made  a  run  for  it  under  a  hail  of 
Japanese  bullets. 

This  was  the  famous  train,  I  have  reason  to  think,  which  is  believed 
by  many  Japanese  to  have  facilitated  Admiral  Alexeieff's  ignominious 
flight  from  Port  Arthur.  As  a  matter  of  fact,  the  Viceroy's  palatial 
train  preceded  this  last  train  by  more  than  twenty-four  hours.  One  of 
the  railway  officers  who  served  on  it,  when  I  asked  him  about  the  mat- 
ter at  Mukden,  scoffed  at  the  notion  that  a  Red  Cross  flag  had  even 
been  hoisted  over  it.  There  had  not  even  been  an  occasion  for  such  an 
expedient,  he  said,  as  they  had  not  seen  a  sign  of  the  enemy  from  one 
end  of  the  run  to  the  other. 

The  big  new  brick  building  of  the  Red  Cross  hospital  at  Port  Arthur, 
which  was  originally  intended  for  an  administrative  mansion,  stands 
on  a  rather  conspicuous  eminence  a  short  distance  beyond  the  dwelling- 
houses  of  General  Stoessel,  Admiral  Ukhtomsky,  General  Smyrnoff,  and 
the  quarters  of  the  General  Staff.  The  building  is  so  large,  and  stands 
so  exposed  near  the  batteries  mounted  on  the  crest  of  Pehyushan,  over- 
looking the  old  Chinese  city,  that  it  is  no  wonder  that  it  is  struck  by 
stray  shells.  What  most  surprised  me  about  it  was  that  a  number  of 
workmen  were  still  engaged  in  building  operations  on  it.  They  were 
finishing  a  new  wing,  and  others  were  laying  out  garden-plots  on  the 
grounds  around  it. 

The  hospital  has  three  stories,  with  a  capacity  of  some  eight  hun- 
dred beds.  Its  large  halls  and  wide,  stone  stairways  appeared  to  me 
admirably  adapted  for  hospital  purposes.  The  main  ward  is  on  the 
second  floor.  At  the  time  when  I  was  shown  over  it  by  General  Bala- 
shoff  there  were  not  more  than  160  patients  in  this  ward.  Long  rows  of 
beds  stood  empty.  In  a  smaller  ward  were  some  Japanese  patients, 
said  to  number  65  in  all.  Of  these  invalids  I  caught  stray  glimpses 
only  through  an  open  door.  I  asked  General  Balashoff  whether  I  might 
see  the  Japanese  invalids  and  speak  with  them,  but  he  did  not  answer 
me,  so  I  inferred  that  he  did  not  wish  to  grant  my  request,  for  reasons 
best  known  to  himself.    I  may  have  been  mistaken  in  this,  though,  since 


CHAP.  VI.,  SECT.  II.]      NON-COMBATANTS  IN  PORT  ARTHUR.    203 

General  Balashoff  is  very  deaf  and  may  not  have  heard  the  remark  I 
shouted  in  his  ear. 

In  other  private  wards  were  some  of  the  more  serious  cases  and  the 
wounded  officers,  among  whom  were  said  to  be  two  Japanese  naval 
officers.  I  asked  for  the  names  of  these  officers,  but  the  Russian  sur- 
geon who  attended  us  said  they  were  too  hard  to  pronounce.  Besides 
the  officers  there  were  several  cases  of  sick  women,  one  of  whom  had 
just  given  birth  to  a  child.  Most  of  the  nurses  also  were  women.  Those 
with  whom  I  spoke  were  of  an  uncommonly  attractive  and  refined  type. 
General  Balashoff  afterwards  told  me  they  were  the  wives  of  officers. 

Besides  the  large  Red  Cross  hospital  there  is  a  smaller  one  in  a 
remote  section  of  the  old  city,  which  was  formerly  a  Chinese  theatre. 
Another  Red  Cross  hospital,  which  was  said  to  be  unfinished,  is  in  the 
distant  new  city.  Besides  these  there  are  the  regular  field  hospitals  of 
the  Sanitary  Corps  of  the  army.  These  hospitals,  some  of  which  were 
established  close  to  the  firing  lines,  I  was  told,  were  always  filled  with 
emergency  cases.  Owing  to  their  exposed  positions  it  was  impossible  in 
many  instances  to  remove  their  most  serious  cases  to  the  base  hospitals. 

On  the  water  front  is  the  Marine  Hospital,  with  a  capacity  of  more 
than  five  hundred  beds.  The  wounded  and  sick  sailors  are  first  also 
attended  to  in  the  hospital  ships  riding  at  anchor  in  the  harbour.  The 
largest  of  these  is  the  great  Red  Cross  floating  hospital  Angora,  a  three- 
funnelled  white  steamer  having  huge  red  crosses  painted  amidships  and 
on  its  central  smokestack,  formerly  the  Russian  passenger  liner  Amur. — 
Kobe  Chronicle. 


Sect.  II.     The  Non-Combatants  in  Port  Arthur. 

In  accordance  with  the  august  wish  of  H.  M.  the  Emperor, 
who  considered  it  to  be  against  the  cause  of  humanity  to  per- 
mit the  non-combatants  in  Port  Arthur  any  longer  to  partici- 
pate in  the  dangers  of  war,  at  8  o'clock  on  the  morning  of  the 
16th  of  August,  Major  Yamaoka  of  the  staff  was  despatched  as 
herald  to  the  front  of  the  besieged  and  announced  the  release 
of  the  non-combatants,  together  with  the  advice  of  surrender. 
Eeports  on  the  event  are  transcribed  below. 

By  the  order  of  H.  M.  the  Emperor,  Marshal  Marquis  Yamagata, 
Chief  of  the  General  Staff  Office,  has  forwarded  the  following  instruc- 
tions to  Marshal  Marquis  Oyama,  Commander-in-Chief  of  the  Army  in 
Manchuria: 

"  H.  M.  the  Generalissimo,  prompted  by  the  august  wish  for  the  cause 
of  humanity,  desires  to  spare  the  non-combatants  in  Port  Arthur  from 
the  devastation  by  fire  and  sword. 


204  LAWS   OF   LAND   WARFARE.  [PART  II. 

"In  response  to  the  command  of  H.  M.  the  Emperor,  you  are  re- 
quested herewith  to  convey  to  Dalny  those  women,  priests,  merchants, 
and  diplomatists  and  officers  of  neutral  countries  now  staying  in  Port 
Arthur  who  desire  to  take  refuge,  and  to  hand  them  over  to  the  com- 
mander of  the  harbour. 

"  Should  you  deem  that  the  military  operations  will  in  no  way  be 
affected,  you  may  take  similar  measures  on  behalf  of  the  non-combatants 
in  Port  Arthur  not  enumerated  above." 


The  Japanese  Minister  of  Foreign  Affairs  sent  the  following 
note  on  this  proposal  to  the  French  Minister  at  Tokyo: 

Baron  Komura  to  the  French  Minister. 

Sent  Aug.  13th,  1904. 
Monsieur  le  Minister: 

His  Imperial  Majesty,  actuated  by  motives  of  humanity,  has  gra- 
ciously expressed  His  desire  to  see  non-combatants  at  Port  Arthur  saved 
as  much  as  possible  from  disastrous  consequences  of  war.  Accordingly, 
the  Commander-in-Chief  of  His  Majesty's  Forces  in  Manchuria  has  been 
instructed  to  the  effect  that  women,  children,  and  clergymen,  as  well 
as  diplomatic  and  military  officers  of  neutral  Powers  at  Port  Arthur, 
who  may  desire  to  seek  refuge,  shall  be  escorted  to  Dalny,  and  that 
similar  treatment  shall  be  extended  to  other  non-combatants,  in  so  far 
as  military  exigencies  permit.  I  add  for  your  information  that  these 
refugees  will  be  transported  from  Dalny  to  Nagasaki,  whence  they  will 
be  allowed  to  start  for  their  respective  homes. 

(Signed)     Komura. 

The  answer  is  as  follows : 

Legation  de  la  RSpublique  Frangaise  au  Japon, 

Tokyo,  le  23  Aotit,  1904. 
Monsieur  le  Baron: 

J'ai  l'honneur  d'accuser  reception  a  Votre  Excellence  de  sa  lettre 
du,  12  de  ce  mois  par  laquelle  il  me  fait  connaitre  que  S.  U.  l'Em- 
pereur,  dans  un  but  d'humanite,  a  daigne  manifester  le  d€sir  d'epargner 
aux  non-combattants  qui  se  trouvent  a  Port  Arthur  les  risques  du  bom- 
bardement,  et  que  des  instructions  ont  gte"  adress6es  au  Commandant 
en  Chef  des  forces  japonaises  eu  Mandchourie  pour  que,  le  cas  Scheant, 
ils  fussent  conduits  en  toute  sgcurite"  a  Dalny. 

Je  me  suis  empresse  de  transmettre  cette  decision  a  mon  Gouverne- 
ment,  en  le  priant  de  la  porter  a  la  connaissance  du  Gouvernement 
Husse,  conformant  au  d£sir  que  m'a  exprime"  Votre  Excellence.  Veuillez- 
agr6er,  Monsieur  le  Baron,  les  assurances  de  ma  trSs  haute  consideration. 

(Signe) 


CHAP.  VI.,  SECT.  II.]      NON-COMBATANTS  IN  PORT  ARTHUR.    205 

The  conditions  which  the  Japanese  herald  brought  to  the 
Russian  Army  were  as  follows: 

1.  Those  who  may  take  refuge,  in  response  to  the  most  generous 
august  wish  of  H.  M.  the  Emperor,  should  be  women,  children  (under 
the  age  of  16  years),  priests,  diplomatists  and  officers  of  neutral  nation- 
alities at  present  inspecting  the  war. 

2.  The  response  should  be  delivered  at  a  point  500  metres  north  of 
the  Sui-si-ei,  at  10  o'clock  in  the  morning  of  the  17th  of  August. 

3.  Those  who  desire  to  take  refuge  should  be  at  the  above-men* 
tioned  spot  at  2  o'clock  p.m.  on  the  17th  of  August,  under  a  white  flag. 

4.  A  corps  of  our  infantry,  bearing  a  white  flag,  should  meet  the 
refugees  at  the  same  spot. 

5.  One  piece  of  baggage  is  permitted  each  person,  under  the  con- 
dition that  it  shall  be  examined  whenever  necessary. 

6.  Refugees  are  forbidden  keeping  about  them  books,  printed  matter, 
letters,  writings  in  letters  or  symbols,  or  any  matters  relating  to  the  war. 

7.  Refugees  shall  be  escorted  as  far  as  Dalny  under  full  protection. 

8.  Response  should  be  either  in  the  affirmative  or  negative,  no 
alteration  being  allowed  in  the  conditions. 

Next  day  Stoessel  replied  in  the  negative  to  both  the 
Japanese  invitation  to  surrender  and  the  release  of  non-com- 
batants. According  to  the  laws  of  war,  it  is  not  forbidden  to 
deny  the  surrender  of  non-combatants  in  a  besieged  fort.  A 
German  writer  says : * 

"  Dasselbe  gilt  bezuglich  anderer  Personen,  deren  Abzug  vom  Hu- 
manitatsstandpuncte  aus  dringend  wunschenswerth  sein  kann  und 
deshalb  auch  wohl  von  dem  Belagernden  bewilligt  worden  ist,  wie  der 
Eiber,  Greise,  Kinder,  Kranken,  Verwundeten.  Ob  diese  abziehen 
diirfen  oder  nicht,  hiingt  wiederum  nach  Massgabe  des  priegerischen 
Bedurfnisses  lediglich  von  dem  Eremessen  des  Belagernden  ab.  Den 
humanitaren  Ansprtichen  steht  die  Erwagung  gegenuber,  dass  gerade 
das  Verbleiben  dieser  Persone  in  dem  belagerten  Platze  die  Uebergabe 
desselben  herbeifiihren  oder  beschleunigen  kann,  namentlich  durch  Hun- 
gersnoth  oder  dadurch,  dass  der  Festungscommandant  durch  diese 
Personen  mittelbar  oder  unmittelbar  zu  Gunsten  der  Uebergabe  beein- 
flusst  wird.  Die  Entlassung  kann  den  belagerungszweck  sehr  bedeu- 
tend  hemmen,  die  Nothigung  der  genannten  Personen  zum  Verbleiben 
kann  ihn  betrachtlich  fordern.  Folglich  kann  die  Gewahrung  des  Ab- 
zugs  als  eine  Untersttitzung  des  Gegners  vom  Belagernden  nicht  ver- 
langt  werden,  ganz  abgesehen  von  den  Storungen  und  Belastigungen, 
welche  ihm  aus  der  Entlassung  erwachsen  konnen. 

1  Holtzendorff,  Handbuch  des  Volkerrechts,  IV.,  Sect.  109,  pp.  450-451. 


206  LAWS   OF  LAND   WARFARE.  [PART  II. 

"  Es  war  daher  ein  Act  besonderer  Grossmuth,  Wilde  und  Hu- 
manitat,  dass  die  Deutsche  Heeresleitung  im  1870-7er  Kriege  den 
Nicht-Combattanten,  sobald  es,  ohne  den  Kriegszweck  zu  sehr  zu 
schadigen,  irgend  anging,  freien  Abzug  aus  Strassburg  gewahvte,  wo- 
durch  aber  an  der  Regel  nichts  geandert  und  der  Satz  nicht  alterirt 
wird,  dass  die  Entscheidung  uber  die  Entlassung  lediglich  bei  dem 
Belagernden  steht. 

"  Verlassen  die  in  Rede  stehenden  Personen,  sei  es  aus  freien  Stucken, 
sei  es  auf  Weisung  des  in  dem  belagerten  Platze  Commandirenden,  den 
Platz  ohne  oder  gar  gegen  den  Willen  des  Belagernden,  so  kann  der 
letztere  natiirlich  alle  Gewaltmittel,  um  Jene  zuruckzutreiben,  anwen- 
den.  Denn  er  braucht  sich  keine  Schwachung  seiner  eigenen  oder  Ster- 
kung  der  gegnerischen  Position,  noch  ein  Eindringen  in  seine  Linien 
gefallen  zu  lassen,  sondern  ist  zur  Abwehr  mit  alien  Mitteln  berechtigt. 
Daraus  folgt  fur  den  Commandanten  der  Festung  die  Verpflichtung, 
die  in  Rede  stehenden  Personen  zu  behalten,  bezw.  zuruckzunehmen. 

"Ebenso  ist  der  Belagernde  berechtigt,  sich  gegen  Einzelne  oder 
grossere  Partien,  welche  die  Festung  verlassen,  durch  Gefangennahme 
(z.  B.  weil  sie  nach  Aussen  Nachricht  geben  konnten)  zu  sichern,  wenn 
er  sich  damit  begnugen  will;  weitere  Kriegsrechtliche  Massergeln,  die 
nach  Lage  der  Umstande  begrundet  sein  konnen,  natiirlich  vorbehalten." 

Nevertheless  Japan  proposed  to  take  such  a  generous  meas- 
ure to  soften  the  grimness  of  war.  Why  did  Stoessel  reject 
this  proposal?  Although  one  admires  his  never-tiring  bravery 
which  had  no  ear  for  anything  like  surrender,  by  no  means  can 
approval  be  given  his  refusal  to  release  non-combatants  as  a 
breach  of  humanity. 

Sect.  III.    The  German  Officers  from  Port  Arthur. 

The  German  military  officers  who  chanced  to  be  in  Port 
Arthur  were  released  according  to  the  Emperor's  wish.  The 
following  is  the  report: 

Notice  of  Refuge  to  German  Officers. 

A  despatch  to  the  chief  of  the  Headquarters  Staff  to  the  commander 
of  the  siege,  dated  the  16th  of  August,  says: 

"  You  are  requested,  through  the  German  Minister,  to  take  measures 
of  duly  forwarding  the  command  directed  by  the  Emperor  of  Germany 
to  Commander  Hopman  and  Lieutenant  Girgenheim,  two  German  offi- 
cers in  Port  Arthur  inspecting  the  war,  of  leaving  Port  Arthur,  prompted 
by  the  most  generous  august  will  of  H.  M.  the  Generalissimo." 


CHAP.  VI.,  SECT.  III.]  GERMAN  OFFICERS  FROM  PORT  ARTHUR.   207 

The  response  says: 

"  The  request  to  forward  the  German  Emperor's  command  to  the 
persons  addressed,  Commander  Hopman  and  Lieutenant  Girgenheim,  in 
Port  Arthur,  was  duly  fulfilled  by  a  letter  intrusted  to  the  Russian 
herald  who  brought  the  response  to  our  proposal  of  the  release  of  non- 
combatants." 

A  few  days  later  Admiral  Togo,  Commander-in-Chief  of 
the  Combined  Fleet,  reported,  under  date  of  the  20th  inst,  that 
on  the  18th  one  of  the  Japanese  torpedo  boats  stopped  and  ex- 
amined a  junk  issuing  from  Port  Arthur  and  found  that  the 
vessel  carried  on  board  Lieutenant-Commander  Hopman,  of  the 
German  Navy,  who  left  that  port  in  accordance  with  the  com- 
mand of  the  Kaiser,  which  had  been  transmitted  to  the  officer 
by  our  army  investing  Port  Arthur.  The  Lieutenant-Com- 
mander was  taken  to  Kiaochow  by  the  cruiser  Yayeyama. 

In  this  connection  the  Chefoo  correspondent  of  the  Tokyo. 
Asahi  states  that  the  Yayeyama  entered  Kiaochow  on  the  20th 
at  3  p.m.,  the  Captain  and  the  officer  second  in  command  pay- 
ing a  visit  to  the  German  authorities  there.  After  handing 
over  the  officer  in  question,  the  vessel  weighed  anchor  at  6.10 
p.m. 

The  fact  of  the  Yayeyama  having  taken  the  German  marine 
officer  to  Tsingtao  appears  to  have  created  a  very  favourable 
impression,  especially  in  maritime  circles ;  and  it  being  tele- 
graphed from  there  that  he  was  treated  with  great  courtesy, 
the  Local  Anzeiger  states  that  his  being  received  on  board  the 
Japanese  man-of-war  and  taken  to  Tsingtao  is  an  attention  for 
which  Germany's  thanks  are  due  to  the  Japanese  maritime 
authorities. 

To  the  surprise  of  the  Japanese,  later  on  an  article  was  met 
with  in  some  of  the  newspapers  at  Chefoo  and  Shanghai  to  the 
effect  that  the  Japanese  Navy  inspected  or  confiscated  docu- 
ments carried  by  Hopman  while  escorting  him  to  Tsing-tao. 
Thereupon  the  Japanese  Consul  at  Chefoo  at  once  learned 
the  facts  about  Hopman,  so  as  to  verify  the  fictitious  disposi- 
tion of  the  above  article,  adding  that  if  it  had  no  real  basis 
he  should  declare  his  non-recognition  about  the  said  invention, 


208  LAWS   OF  LAND   WARFARE.  [PART   II. 

for  the  sake  of  German-Japanese  friendship.     The  following 
is  the  report  made  by  Commander  Hopman: 

Chefoo,  den  31  August,  1904. 
Sehr  geehrter  Herr  Consul: 

Durch  Herrn  Consul  Dr.  Lenz  erfahre  ich  soeben,  dass  einige  Zei- 
tungen  die  Nachricht  gebracht  haben,  bei  meiner  Aufnahme  durch  die 
Schiffe  der  Japanische  Flotte  sein  meine  Papiere  untersucht  worden. 
Ich  fiihle  mich  verpflichtet,  demgegeniiber  festzustellen,  dass  diese 
Nachricht  vollig  erfunden  und  unwahr  1st.  Keiner  der  Japanischen 
Offiziere,  die  ich  an  Bord  verschiedener  Ihrer  Schiffe  gesprochen  habe, 
hat  mich  auch  nur  darnach  gefragt,  ob  ich  irgendwelche  Papiere  mit 
mir  ftihrte,  geschweige  denn  deren  Vorzeigung  verlangt.  Ebenso  ist 
die  ghunke,  die  mit  meinem  Gepack  nach  Chefoo  weitersegelte, 
wahrend  ich  auf  Befehl  Sr.  Excellenz  des  Vice-Admirals  Togo  durch 
den  Kreuzer  "  Yayeyama "  nach  Tsingtao  bef ordert  wurde,  nicht  un- 
tersucht worden  und  mein  Gepack  vollig  unberiihrt  in  meine  Hande 
gelangt. 

Ich  benutze  die  Gelegenheit  um  Ihnen,  verehrter  Herr  Consul,  noch- 
mals  meinen  besten  Dank  fur  die  Bemuhungen  auszusprechen,  denen 
Sie  sich  zur  Auffindung  meines  Gepiicks  unterzogen  haben,  und  gleicli- 
zeitig  die  Bitte  auszusprechen,  Sr.  Excellenz  Herrn  Vice- Admiral  Togo, 
Sr.  Excellenz  Herrn  Vice-Admiral  Kataoka,  sowie  den  Commandante 
und  Offizieren  der  Schiffe,  die  mir  in  der  liebenswtirdigsten  Weise  ent- 
gegen  gekommenden  sind,  meinen  verbindliehsten  Dank  iibermitteln  zu 
wollen. 

Ich  bin  damit  einverstanden,  wenn  Sie  von  diesem  Briefe  Gebrauch 

machen  wollen,  um  den  oben  erwanten  erfundenen  Nachrichten  offtenlich 

cntgegentreten. 

Mit  vorziiglicher  Hochachtung 

Ihr 

ganz  ergebenster, 

(bezeichnet)     Corvetten  Kapitan  Hopman, 

vom  Admiralstab  der  Kaiserlich  Deutschen  Marine. 

■   In  this  way  the  true  state  of  affairs  was  cleared  up. 


CHAPTER   VII. 

THE    CAPITULATION. 

The  siege  of  Port  Arthur,  which  lasted  for  11  months,  will 
be  transmitted  to  posterity  as  a  rare  example  of  human  bravery,, 
and  those  who  participated  in  that  siege,  both  assailants  and 
defenders,  must  remain  immortal  patterns  of  soldiers.  We 
will,  however,  pass  over  all  these  memorable  incidents  that  oc- 
curred in  the  course  of  the  siege,  and  simply  record  the  bare 
facts  as  one  of  the  good  instances  of  capitulation. 

Sect.  I.     General  StoesseFs  Proposal  to  Surrender. 

The  following  report  from  the  commander  of  the  Army  in- 
vesting Port  Arthur,  concerning  the  detail  of  Stoessel's  pro- 
posal to  surrender,  was  received  at  the  Imperial  Military  Head- 
quarters at  3  a.m.  on  the  2nd  January : 

About  5  p.m.,  on  the  1st  of  January,  the  enemy's  Parlementaire 
arrived  at  our  first  line  south  of  Shui-shi-ying  and  handed  the  follow- 
ing message  to  one  of  our  officers,  from  whom  I  received  it  at  9  a.m.: 

No.  2545. 

Port  Arthur,  December  31st,  1904. 

To  General  Nogi,  etc. 
Your  Excellency: 

Judging  from  the  general  situation  within  the  area  of  fighting,  I 
think  that  further  resistance  is  needless.  In  order,  therefore,  to  avoid 
further  loss  of  life,  I  ask  you  to  negotiate  for  the  terms  of  surren- 
der. Should  you  accept  my  proposal,  you  will  appoint  a  commissioner 
in  order  to  discuss  the  terms  and  process  of  surrender,  and  fix  a  place 
of  meeting  between  your  commissioner  and  ours. 

I  avail  myself  of  this  opportunity  to  express  my  highest  considera- 
tion. 

(Signed)     General   Stoessel. 

209 


210  LAWS   OF   LAND   WARFARE.  [PART   II. 

I  thereupon  ordered  our  parlementaire  to  deliver  the  following  reply- 
to  the  enemy  immediately  after  dawn  to-day: 

Headquarters  of  the  Investing  Army  before  Port  Arthur, 

Jan.   2,   1905. 

To  General  Stoessel,  etc. 
Youb  Excellency: 

I  have  the  honour  herewith  to  express  my  consent  to  the  proposal 
of  Your  Excellency  to  hold  negotiations  on  the  terms  and  process  of 
the  surrender  of  the  fortress.  For  this  purpose,  I  have  appointed 
Major-General  Kosuke  Ijichi,  Chief  of  the  Staff  of  the  Investing  Army 
before  Port  Arthur,  commissioner,  and  attached  to  him  a  number  of 
staff  officers  and  civil  officials.  The  party  will  meet  the  commissioner 
of  your  army  at  Shui-shi-ying  at  noon  of  January  2nd,  1905.  The 
commissioners  of  both  armies  shall  be  fully  authorised  to  sign  the 
stipulations  for  the  surrender  of  the  fortress,  the  stipulations  to  come 
into  force  immediately  after  signing  and  without  ratification.  The 
credentials  shall  be  signed  by  the  highest  commanders  of  both  Armies 
and  be  exchanged. 

I  avail  myself  of  this  opportunity  to  express  my  highest  respects 
to  your  excellency. 

(Signed)     General  Babon   Nogi. 

By  order  of  His  Majesty  the  Emperor,  Marshal  Marquis  Yamagata, 
Chief  of  the  General  Staff,  despatched  the  following  telegram  to  General 
Baron  Nogi,  Commander  of  the  Investing  Army  before  Port  Arthur,  on 
January  2nd,  at  8  a.m.: 

On  submitting  to  H.  M.  the  Emperor  the  proposal  of  General  Stoes- 
sel to  surrender,  His  Majesty  was  pleased  to  appreciate  General  Stoes- 
sel's  arduous  services  for  the  sake  of  his  fatherland,  and  desires  that 
all  the  honours  of  war  be  accorded  him. 

I  respectfully  transmit  the  above  to  you. 

(Signed)     Marquis  Yamagata, 
Commander-in-Chief   of    the   Manchurian   Armies. 

Thus  the  proposal  of  surrender  by  General  Stoessel  was  ac- 
cepted by  the  Japanese  Army. 


Sect.  II.     Stoessel  Communicates  with  the  Czar. 

The  following  report  from  the  Army  investing  Port  Arthur 
was  received  at  the  Imperial  Military  Headquarters  at  7  p.m. 
on  January  4th: 


CHAP.  VII.,  SECT.  III.]      TERMS   OF   CAPITULATION.  211 

At  the  conference  held  on  the  2nd  inst.  regarding  the  capitulation, 
the  Russian  Commissioner  requested  our  Commissioner  to  forward  a 
message  to  the  Czar  with  reference  to  the  oath  to  be  taken  by  the 
officers  and  civil  functionaries  in  accordance  with  Art.  VII.  of  the 
Terms  of  Capitulation,  the  commissioner  stating  that  it  was  necessary 
to  obtain  the  Czar's  permission  before  such  an  oath  could  be  taken. 
Upon  approval  of  the  Commander  of  the  Army,  our  Commissioner 
transmitted  the  Russian  General's  telegram.  A  reply  was  subsequently 
received  from  the  Czar,  the  message  being  addressed  to  the  Communi- 
cation station  here.  The  Imperial  message  was  at  once  forwarded  to 
General  Stoessel.  The  translation  of  the  two  messages  is  herewith 
submitted  for  the  purpose  of  reference: 

Stoessel's  Telegram. 

(Dated  Military  Communication  Station, 
Choukiatun,  Port  Arthur.) 
To  His  Majesty  the  Czar  at  St.  Petersburg. 

I  have  been  forced  to  sign  a  capitulation  concerning  the  surrender 
of  Port  Arthur.  The  officers  and  civil  functionaries  are  allowed  to 
wear  arms  and  return  to  Russia,  under  obligation  not  to  take  part 
in  the  present  war,  but  should  they  refuse  to  subscribe  to  the  obliga- 
tion, they  are  to  remain  prisoners  of  war.  I  apply  to  your  Majesty 
for    permission  to  grant   the   obligation   demanded. 

(Signed)     General  Stoessel. 

The  Czar's  Reply. 

(Dated  Mitchanovitch,   South  Russia,   5.30   p.m., 

Jan.  3,   1905.) 
To  General  Stoessel,  Aide-de-Camp  to  His  Majesty. 

I  allow  each  officer  by  the  privilege  reserved  to  him  either  to  re- 
turn to  Russia  under  obligation  not  to  take  part  in  the  present  war, 
or  to  share  the  destiny  of  the  men.  I  thank  you  and  the  brave  gar- 
rison for  the  brilliant  defence. 

(Signed)     Nicholas. 


Sect.  III.     The  Terms  of  the  Capitulation. 

The   following  is   the  text  of   the   capitulation   agreement 
signed  at  9.45  p.m.  on  the  2nd  of  January : 

Art.  I.  The  military  and  naval  forces  of  Russia  in  the  fortress  and 
harbour  of  Port  Arthur,  as  well  as  the  volunteers  and  the  officials,  shall 
all  become  prisoners. 


212  LAWS   OF   LAND   WARFARE*  [PART   II. 

Art.  II.  The  forts  and  fortifications  of  Port  Arthur,  the  warships 
and  other  craft,  including  torpedo  craft,  the  arms,  the  ammunition,  the 
horses,  all  and  every  material  for  warlike  use,  shall  be  handed  over  as 
they  are  to  the  Japanese  Army. 

Art.  III.  When  the  above  two  articles  are  agreed  to,  the  follow- 
ing steps  shall  be  taken  by  way  of  guarantee,  namely,  by  noon  on  the 
3rd  instant  all  garrisons  shall  be  withdrawn  from  all  fortifications  and 
forts  at  I-tzu-shan,  Hsiao-an-tzu-shan,  Ta-an-tzu-shan,  and  all  the  high- 
lands on  the  southeast  of  these,  and  the  said  fortifications  and  forts 
shall  be  handed  over  to  the  Japanese  Army. 

Art.  IV.  Should  it  be  recognised  that  the  Russian  military  or  naval 
forces  destroy  or  take  any  other  steps  to  alter  the  condition  of  the 
things  enumerated  in  Art.  II.  and  actually  existing  at  the  time  of 
the  signature  of  this  agreement,  these  negotiations  shall  be  broken  off 
and  the  Japanese  Army  will  break  off  negotiation  and  resume  freedom 
of  action. 

Art.  V.  The  officers  of  the  Russian  military  and  naval  forces  of 
Port  Arthur  shall  compile  and  hand  to  the  Japanese  army  maps  show- 
ing the  arrangement  of  the  defences,  the  positions  of  mines  and  tor- 
pedoes or  other  dangerous  objects,  as  well  as  lists  of  the  organisation 
of  the  naval  and  military  forces  in  Port  Arthur,  nominal  rolls  of  the 
military  and  naval  officers,  their  ranks  or  grades,  similar  rolls  relating 
to  the  warships,  lists  of  the  ships  of  all  descriptions  and  their  crews, 
and  tables  of  the  non-combatants,  male  and  female,  their  nationalities 
and  their  occupations. 

Art.  VI.  The  arms  (including  those  in  the  hands  of  the  forces), 
the  ammunition,  and  all  material  for  war  uses  (except  private  prop- 
erty) shall  be  all  left  in  their  present  positions.  Rules  relating  to  the 
handing  over  and  receipt  of  these  objects  shall  be  arranged  by  com- 
missioners from  the  Russian  and  the  Japanese  Armies. 

Art.  VII.  The  Japanese  Army,  as  an  honour  to  the  brave  defence 
made  by  the  Russian  Army,  will  allow  the  officers  of  the  Russian  mili- 
tary, and  naval  forces  and  the  officials  attached  to  the  said  forces  to 
retain  their  swords,  together  with  all  privately  owned  articles  directly 
necessary  for  daily  existence.  Further,  with  regard  to  the  said  officers, 
officials,  and  volunteers,  such  of  them  as  solemnly  pledge  themselves  in 
writing  not  to  bear  arms  again  until  the  close  of  the  present  war,  and 
not  to  perform  any  act  of  whatsoever  kind  detrimental  to  the  interests 
of  Japan,  shall  be  permitted  to  return  to  their  country,  and  one  soldier 
shall  be  allowed  to  accompany  each  officer  of  the  army  or  navy.  These 
soldiers  shall  be  required  to  give  a  similar  pledge. 

Art.  VIII.  The  disarmed  non-commissioned  officers  and  men  of  the 
army  and  navy,  as  well  as  of  the  Volunteers,  wearing  their  uniforms, 
carrying  their  tents  and  all  privately  owned  necessaries  of  daily  life, 
shall,  under  the  command  of  their  respective  officers,  assemble  at  places 
indicated  by  the  Japanese  Army.  The  details  of  this  arrangement  will 
be  shown  by  the  commissioners  of  the  Japanese  Army. 

Art.  IX.     The  officials  of  the  sanitary  and  paymaster's  departments 


CHAP.  VII.,  SECT.  III.]      TERMS   OF   CAPITULATION.  213 

of  the  Russian  military  and  naval  forces  in  Port  Arthur  shall  remain 
and  continue  to  discharge  their  duties  under  the  control  of  the  Japa- 
nese sanitary  and  paymaster's  departments  so  long  as  the  Japanese 
Army  deems  it  necessary  for  ministering  and  affording  sustenance  to 
the  sick,  the  wounded,  and  the  prisoners. 

Art.  X.  Detailed  regulations  with  reference  to  the  management  of 
the  non-combatants,  the  administration  of  the  town,  the  performance  of 
financial  duties,  the  transfer  of  documents  relating  to  these  matters, 
and  with  reference  to  the  carrying  out  of  the  Agreement  in  other  re- 
spects, shall  be  entered  in  an  Appendix  to  this  Agreement.  Such  Appen- 
dix shall  have  the  force  of  the  Agreement  itself. 

Art.  XI.  Each  of  the  contracting  parties  shall  receive  one  copy  of 
this  agreement,  and  it  shall  become  operative  from  the  time  of  its 
signature. 

Supplement  to  the  Capitulation. 

Art.  I.  The  following  commissions  shall  be  appointed  by  both  Japa- 
nese and  Russian  Armies  in  order  to  carry  out  the  provisions  of  the 
Capitulation: 

1.  Commission  relating  to  Art.  VI.  of  the  Capitulation;  Commis- 
sion relating  to  the  fortifications  and  forts  and  the  arms  and  ammuni- 
tion existing  on  land;  Commission  relating  to  the  war- vessels  and 
ordinary  vessels;  Commission  relating  to  the  war  material  in  the  para- 
pets;  and  Commission  relating  to  the  removal  of  dangerous  objects. 

2.  Commission  relating  to  Art.  VIII.  of  the  Capitulation. 

3.  Commission  relating  to  Art.  IX.  of  the  same. 

4.  Commission  relating  to  Art.  X.  of  the  same. 

Art.  II.  The  above-mentioned  Commissions  shall  meet  at  the  en- 
trance of  the  city  on  the  main  road  of  Port  Arthur,  on  the  Northern 
foot  of  Pai-yu-shan,  at  noon  on  January  3rd,  and  begin  their  respective 
work. 

Art.  III.  The  military  and  naval  officers  and  men  in  the  fortress 
of  Port  Arthur  shall  draw  up,  according  to  the  arrangement  to  be 
made  by  the  Japanese  Army  on  receipt  of  the  table  of  their  organisation, 
and  proceed  towards  the  eastern  extremity  of  Yo-hu-tsui,  their  head 
reaching  there  at  9  a.m.  on  January  5,  and  then  receive  orders  from 
the  Commission  relating  to  Art.  VIII.  On  this  occasion  the  officers  and 
officials  attached  to  the  Russian  Army  and  Navy  shall  wear  their 
swords,  but  the  non-commissioned  officers  and  men  shall  not  bear  arms. 
All  the  members  of  this  force  must  bring  with  them  provisions  for 
one  day. 

Art.  IV.  The  Russian  officials  who  do  not  belong  to  the  army  or 
navy  shall  form  themselves  into  groups,  according  to  their  respective 
offices,  and  follow  the  groups  mentioned  in  the  preceding  Article.  Those 
officials  who  have  not  been  volunteers  shall  be  released  without  parole. 

Art.  V.  Such  number  of  officers  and  men,  or  of  persons  of  cor- 
responding rank,  as  may  be  needed  for  the  purpose  of  delivery,  should 


214  LAWS   OF   LAND   WARFARE.  [PART   II.. 

be  left  in  each  fortification,  each  fort,  each  building,  each  storehouse,, 
each  place  where  materials  are  stored,  each  warship,  and  each  vessel. 
These  individuals  shall  wear  distinguishing  badges  supplied  by  the  Japa- 
nese Army. 

Art.  VI.  Such  military  or  naval  officers  or  volunteers  or  officials 
as  may,  after  9  a.m.  on  January  4th,  continue  to  wear  swords  or  refuse 
to  repair  to  rendezvous  assigned  by  the  Japanese  Army,  shall  be  dealt 
with  suitably  by  the  Japanese  Army. 

Art.  VII.  The  personal  effects  which  the  officers  and  officials  be- 
longing to  the  army  or  navy  may  carry,  in  virtue  of  Art.  VII.  of  the 
Capitulation,  may,  when  deemed  necessary,  be  examined.  The  weight 
of  such  personal  effects  shall  approximately  correspond  to  that  of  the 
baggage  allowed  to  the  officers  and  officials  of  the  Japanese  Army. 

Art.  VIII.  The  military  and  naval  hospitals  and  hospital  ships  in 
Port  Arthur  shall  be  first  inspected  by  a  Japanese  Commission,  and 
then  placed  under  regulations,  to  be  determined  by  the  said  Commission. 

Art.  IX.  All  private  individuals  shall  be  free  to  pursue  their  avo- 
cations in  peace  and  tranquillity.  Such  of  them  as  may  wish  to  leave? 
the  place  shall  be  free  to  take  with  them  all  their  private  property  ► 
In  case  the  families  of  military  and  naval  officers  and  officials  desire 
to  leave  the  place,  the  Japanese  Army  will  afford  them  all  possible 
facilities. 

Art.  X.  In  case  it  is  considered  necessary  to  order  the  departure 
of  any  private  individuals  residing  within  the  fortress  of  Port  Arthur,, 
such  individuals  shall  retire  at  a  time  and  by  roads  designated  by  the 
Japanese  Army. 

Art.  XI.  The  Russian  Commission  relating  to  Art.  X.  of  the  Capitu- 
lation shall  acquaint  the  corresponding  Japanese  Commission  as  to  the 
past  and  present  condition  of  the  administration  and  financial  business* 
at  the  same  time  handing  over  all  the  documents  relating  thereto. 

Art.  XII.  The  Japanese  prisoners  of  war  in  Port  Arthur  shall  be 
handed  over  to  the  Japanese  Commission  designated  in  Art.  I.  of  the 
present  Capitulation  at  3  p.m.  on  January  3rd. 

Rules  for  the  Carrying  Out  of  the  Capitulation. 

The  following  is  a  translation  of  the  rules  drawn  up  by  the  Head- 
quarters of  the  Imperial  Army  before  Port  Arthur  for  the  guidance  of 
our  Commissioners  in  carrying  out  the  provisions  of  the  Capitulation: 

Art.  I.  The  following  Commissions  shall  be  appointed  in  order  to- 
carry  out  the  Capitulation: 

1.  Commissions  relating  to  Art.  VI.  of  the  Capitulation,  viz.:  Com- 
mission to  accept  the  transfer  of  the  fortifications  and  forts,  arms  and 
ammunition  on  land,  military  buildings,  etc.;  Commission  to  receive 
the  warships  and  other  vessels;  Commission  to  receive  the  provisions1 
and  supplies;   and  Commission  for  removing  dangerous  objects. 

2.  Commission  relating  to  Art.  VIII.  of  the  Capitulation  (delivery 
of  prisoners). 


CHAP.  VII.,  SECT.  IV.]      TRANSFER   OF   THE   FORTS.  215 

3.  Commission  relating  to  Art.  IX.  of  the  Capitulation  (sanitation). 

4.  Commission  relating  to  Ait.  X.  of  the  Capitulation  (municipal 
administration ) . 

Art.  II.  The  Commission  to  accept  the  transfer  of  the  fortifications 
and  forts,  arms  and  ammunition  on  land,  the  military  buildings,  and 
the  various  war  materials  on  land,  shall  be  divided  into  two  sections. 
One  section  shall  attend  to  the  execution  of  its  duties  in  the  district 
lying  on  the  east  of  the  Kinchow  road,  and  the  other  section  in  the 
district  to  the  west  of  the  said  road. 

Art.  III.  The  Chief  of  the  Commission  to  receive  the  warships  and 
other  vessels  shall  detail  the  necessary  number  of  officers  and  men  for 
the  execution  of  different  duties,  and  carry  out  the  transfer  according 
to  the  procedure  arranged  with  the  corresponding  Russian  Commission. 

Art.  IV.  The  Commission  for  the  receipt  of  the  various  provisions 
and  supplies  shall,  in  conference  with  the  corresponding  Russian  Com- 
mission, take  over  the  delivery  by  appropriate  arrangements  made  ac- 
cording to  the  importance  of  these  goods. 

Art.  V.  The  Commission  for  the  removal  of  dangerous  objects  shall 
be  divided  into  two  sections,  which  shall,  step  by  step,  carry  out  their 
work  in  the  districts  east  and  west  of  the  Kinchow  road. 

Art.  VI.  The  Chief  of  the  Commission  for  the  reception  of  pris- 
oners shall  gather  the  prisoners  at  Chaokiatun,  Yahutsun,  Wenkiatun, 
Wankiatun,  Chiutsaifang,  Taliukiatun,  Hsiakiatun,  Kaokiatun,  and 
Siaoliuliatun,  as  well  as  within  the  districts  enclosed  therein. 

The  Chief  of  the  Commission  shall  administer  the  oath  to  the  Rus- 
sian naval  and  military  officers  and  the  officials  ranking  as  officers. 

Art.  VII.  The  Chief  of  the  Commission  relating  to  sanitary  mat- 
ters shall,  after  consulting  the  corresponding  Russian  Commission,  in- 
spect the  hospitals  and  hospital  ships  one  by  one,  and  take  measures 
of  relief,  requisitioning  the  service  of  the  Russian  sanitary  corps  in 
carrying  out  those  measures. 

Art.  VIII.  The  Commission  relating  to  administrative  affairs  shall, 
after  consulting  the  corresponding  Russian  Commission,  receive  the  de- 
livery of  the  papers  regarding  the  status  and  calling  of  the  Russian 
subjects  and  foreigners  resident  in  the  Port  Arthur  fortification  district,, 
papers,  offices,  etc.,  regarding  the  administration  and  accounts,  and  deal 
with  the  examination  and  seizure  of  other  objects,  maintenance  of 
peace  and  order,  protection  of  the  churches,  treatment  of  women  and 
children,  and  all  matters  not  military. 


Sect.  IV.     The  Transfer  of  the  Forts. 

The  following  telegram  from  the  Investing  Army  before 
Port  Arthur  was  received  at  the  Imperial  Military  Headquar- 
ters on  January  4  at  6  p.m. : 


216  LAWS   OF   LAND   WARFARE.  [PART   II. 

The  forts  and  fortifications  on  I-tzu-shan,  Ta-an-tzu-shan,  Hsiao- 
an-tzu-shan,  and  the  whole  range  of  the  height  to  the  southeast,  which 
were  claimed  as  the  guarantee  of  capitulation,  have  been  duly  handed 
over,  the  arrangements  being  completed  without  any  hitch  at  1.30 
p.m.  on  the  3rd. 

The  following  report  from  the  Investing  Army  was  re- 
ceived by  the  Imperial  Military  Headquarters  at  7.05  a.m.  on 
the  5th  of  January : 

As  last  reported,  the  transfer  of  the  objects  mentioned  in  Art.  II. 
of  the  Capitulation  was  effected  on  the  4th.  The  forts  and  fortifica- 
tions were  all  delivered  to  our  forces,  while  the  delivery  of  other  objects 
has  been  mostly  finished.  The  prisoners  of  war  are  to  assemble  at  the 
designated  place  to-day,  but  matters  relating  to  them  are  so  compli- 
cated that  it  is  difficult  to  forward  any  definite  report  on  the  result  of 
the  investigations  made  in  this  connection.  The  list  of  the  various 
reports  so  far  obtained  is  as  follows: 

Number  of  Persons. 
Army. 
8  Generals. 
57  Field  Officers. 
531  Captains  and  Lieutenants. 
99  Army  officials.  , 
109  Surgeons. 
13  Priests. 
22,434  Non-commissioned  Officers  and  men. 
3,645  Non-combatants. 

Navy. 
100  Captains  and  Commanders. 
200  Lieutenants  (including  several  naval  officers). 
7  Priests. 
4,500  Warrant  officers  and  men. 
500  Non-combatants. 


Total,  32,207 

In  the  above  figures  the  Volunteers  are  included  among  the  non- 
•combatants. 

The  sick  and  wounded,  who  number  over  16,000,  are  not  included  in 
the  above  total.  There  are  also  about  100  cavalry  horses  and  1870 
cart  horses. 

General  Stoessel,  with  seven  other  Eussian  Generals  and 
four  Admirals,  gave  their  parole  not  to  take  further  part  in 
the  war.     They,  with  other  officers,  left  Dalny  for  Nagasaki, 


CHAP.  VII.,  SECT.  V.]      RUSSIAN   PRISONERS. 


217 


and  were  temporarily  quartered  at  Inasa,  before  proceeding  to 
Shanghai,  where  they  were  released. 

Those  officers  who  have  refused  to  take  the  oath  were  sent 
to  Moji  and  quartered  in  the  neighbourhood  of  that  town. 
All  the  non-commissioned  officers  and  men  were  sent  to 
Nishima,  Hiroshima-ken,  where  they  were  quarantined  and 
subsequently  sent  to  different  prison  barracks. 


Sect.  V.     The  Russian  Prisoners  at  Port  Arthur. 

The  transfer  of  the  prisoners  of  war  was  concluded  at  4.30' 
p.m.  on  the  7th  of  January.     Among  the  persons  mentioned  in 

the  previous  section  the  following  were  received  as  prisoners: 

Officers  and  Non- 
other  function-  ccmmis- 
aries  of  corre-  sioned  of- 
sponding  ficers  and 
rank.  men. 

General  Stoessel's  Headquarters   2  39 

Headquarters  of  the  Governor  of  Kwan- 

tung  Province 6  15 

Engineer  Company   11  269 

Telegraph  Corps 4  CO 

Railway  Corps 1  155 

Cavalry .* 4  177 

Retvisan 22  446 

Pobieda 22  510 

Pallada 11  208 

Peresviet 15  607 

Poltava 16  311 

Sevastopol  31  507 

Bayan  15  259 

Bobre 12  99 

Stroteboi 4  52 

Otovasny 6  124 

Gyllak 5  •      72 

Amur 5  173 

Headquarters  of  the  Naval  Defence 3  3 

Harbour  Office  '. 60  29 

Marine  Corps   59  2,531 

Torpedo  Corps    10  142 

Judiciary    •         3  3 

Field  Post  and  Telegraph  Office 33  23 

Total    369  6,814 

Grand  total    878  23,491 


218  LAWS   OF  LAND   WARFARE.  [PART   II. 

Sect.  VI.     Booty  of  War  in  Port  Arthur. 

The  following  report  from  General  Baron  Nogi  was  received 
at  the  Imperial  Military  Headquarters  on  January  12th: 

The  delivery  of  fortifications  and  forts,  warships  and  ordinary  ves- 
sels, arms,  and  other  objects  was  finished  on  the  10th.  The  descriptions 
And  quantity  of  the  principal  objects  are,  roughly,  as  follows: 

1.  Permanent  fortifications  and  forts 59 

2.  Arms,  Ammunition,  Waggons,  etc. 
Guns: 

Large  calibre  54 

Medium  calibre 149 

Small  calibre 343 

Total   ~         546 

Shots  and  shells 82,670 

Torpedoes  60 

Explosives  (pieces)   1,588 

Gunpowder  (kilo)   30,000 

Rifles 35,252 

Revolvers 579 

Sabres 1,891 

Rifle  cartridges  2,266,800 

Ammunition  waggons 290 

Commissariat  waggons 606 

Miscellaneous  waggons 65 

Harnesses  for  mounts 87 

Harnesses  for  cart  horses  2,096 

3.  Electric  Lights  14 

4.  Telegraph  apparatuses  15 

Telephone  apparatuses  135 

Heliographs    3 

5.  Entrenchment  tools 1,171 

•6.    Horses 1,920 

7.    Warships  and  Ordinary  vessels: 

Battleships  (including  the  Peresviet,  etc.)..  4 
(The  battleship  Sevastopol  is  excluded,  as 

she  is  completely  submerged.) 

Cruisers   (the  Pallada  and  another  vessel) .  2 

Gunboats  and  destroyers  14 

Steamers   . . .  .V 10 

Steam  Launches 8 

Miscellaneous  "vessels 12 

Besides,  -there  are  a  number  of  privately  owned  vessels.  All  the 
Above  ships  are  either  destroyed  or  sunk. 

In  addition  there  are  35  steam  launches  available  after  repairs. 


CHAPTER    VIII. 

ARMISTICES. 

The  author  is  glad  to  be  able  to  give  many  instances  of 
Armistices  during  the  late  war. 

Sect.  I.     The  Protocol  of  Armistices. 

The  following  is  the  official  English  text  of  the  protocol  of 
armistice  signed  at  Portsmouth  on  the  1st  inst. : 

The  undersigned  Plenipotentiaries  of  Japan  and  Russia, 
duly  authorised  to  that  effect  by  their  Governments,  have 
agreed  upon  the  following  terms  of  armistice  between  the  bel- 
ligerents, pending  the  coming  into  force  of  the  Treaty  of 
Peace : 

1.  A  certain  distance  (zone  of  demarcation)  shall  be  fixed  between 
the  fronts  of  the  armies  of  the  two  powers  in  Manchuria,  as  well  as  in 
the  region  of  the  Tomamko. 

2.  The  naval  forces  of  one  of  the  belligerents  shall  not  bombard 
territory  belonging  to  or  occupied  by  the  other. 

3.  Maritime  captures  will  not  be  suspended  by  the  armistice. 

4.  During  the  term  of  the  armistice  reinforcements  shall  not  be 
despatched  to  the  theatre  of  war.  Those  which  are  en  route  shall  not  be 
despatched  to  the  north  of  Moukden  on  the  part  of  Japan  and  to  the 
south  of  Harbin  on  the  part  of  Russia. 

5.  The  commanders  of  the  armies  and  fleets  of  the  two  Powers  shall 
determine  on  common  accord  the  conditions  of  the  armistice  in  con- 
formity with  the  provisions  above  enumerated. 

6.  The  two  Governments  shall  give  orders  to  their  commanders  im- 
mediately after  the  signature  of  the  Treaty  of  Peace  in  order  to  put 
this  protocol  into  execution. 

Portsmouth,  September  1st,  1905. 

(Signed)     Jutaro  Komura. 
K.  Takahira. 
Serge  Witte. 
Rosen. 

219 


220  LAWS   OF   LAND   WARFARE.  [PART  II. 

Sect.  II.     The  Armistice  of  Manchuria.1 

It  is  reported  that  on  the  11th  of  Sept.,  1905,  a  Russian 
parlementaire  arrived  at  our  outposts  bearing  the  reply  of 
Lieut-General  Linevitch  to  our  notice  regarding  the  armistice. 
In  his  reply  the  Russian  Commander-in-Chief  states  that  he 
has  received  a  copy  of  the  full  text  of  the  armistice  treaty 
signed  by  the  Japanese  and  Russian  peace  envoys  and  has  ap- 
pointed the  Assistant  Chief  of  his  Staff  to  make  the  necessary 
arrangements  in  that  connection.  Upon  receipt  of  this  mes- 
sage, Marshal  Oyama  at  once  notified  the  Russians  that  he  had 
selected  the  place  for  the  negotiations,  and  the  two  commissions 
were  to  meet  on  the  13th  for  the  first  time.  It  is  stated  that 
Major- General  Fukushima  has  been  appointed  our  commis- 
sioner. 

On  Sept.  14th  the  following  report  from  the  Manchurian 
Army   was   received   at   the   Imperial   Military   Headquarters: 

The  Commander-in-Chief  of  the  Manchurian  Army  issued  to-day 
(14th)  an  order  relating  to  the  armistice  between  the  Japanese  and 
Russian  Armies  in  Manchuria,  substantially  as  follows: 

Order. 

1.  The  Commissioners  for  concluding  the  terms  of  armistice  between 
the  Japanese  and  Russian  armies  in  Manchuria  met  at  Shahotsz  (about 
5  miles  north  of  Changtu  station)  yesterday  (the  13th)  at  10  a.m.,. 
and  signed  the  protocol  of  armistice  at  7.20  p.m.  the  same  day.  The 
protocol  consists  of  the  following  five  articles: 

Art.  I.  Hostilities  shall  be  suspended  throughout  the  whole  of 
Manchuria. 

Art.  II.  The  ground  between  the  first  lines  of  the  Japanese  and 
Russian  Armies,  as  shown  in  the  map  to  be  exchanged  together  with 
the  protocol,  shall  be  made  a  neutral  zone. 

Art.  III.  No  person  having  any  connection  with  either  army  shall 
be  permitted  to  enter  the  neutral  zone  under  any  pretext  whatever. 

Art.  IV.  The  road  leading  from  Shahotsz'  to  Shwangmiaotsz'  shall 
be  used  in  common  by  both  armies. 

Art.  V.  This  protocol  shall  become  effective  from  noon  on  Septem- 
ber 16th  of  the  38th  year  of  Meiji  (1905),  or  September  3rd  according 
to  the  Russian  calendar. 

2.  Each  respective  army  shall  enforce  the  terms  of  armistice  accord- 
ing to  this  protocol  by  noon  on  the  16th  inst.  at  the  latest. 

1  Japan  Times,  September  13,  1904. 


CHAP.  VIII.,  SECT.  III.]      ARMISTICES   AT   PORT  ARTHUR.  221 

Sect.  III.     Armistices  at  Port  Arthur. 

Some  strange  records  will  be  collected  with  regard  to  the 
question  of  armistices  at  Port  Arthur.  It  is  known  that  the 
Eussian  proposal  for  an  armistice  to  bury  their  dead  and  col- 
lect their  wounded  after  the  battle  at  High  Hill  ended  in  fail- 
ure. The  Japanese  consented  without  hesitation,  but  there  was 
an  error  in  the  Eussian  application,  and  this  error  entailed  a 
delay  of  a  day,  whereupon  the  Eussians  adopted  the  strange 
opinion  that  it  was  too  late  to  do  anything  for  the  wounded, 
and  that  the  bodies  of  the  dead  might  be  left  as  they  were. 
When  Major-General  Nakamura's  force  penetrated  the  line  of 
defences  on  the  26th  of  November  and  were  recalled,  they  left 
many  dead  under  the  muzzles  of  the  enemy's  guns.  There  was, 
of  course,  a  keen  desire  to  recover  the  remains  of  these  brave 
men,  but  no  opportunity  could  be  found;  the  siege  operations 
were  practically  continuous.  At  last  on  the  11th  of  Dec,  1904, 
Colonel  Watanabe,  at  the  head  of  a  party  of  stretcher-bearers, 
approached  Sungshu-shan  and  asked  permission  to  bury  their 
dead.  The  Eussians  consented  at  once.  But  when  sixty  bodies 
had  been  buried,  the  officer  in  command  on  the  enemy's  side 
sent  an  aide-de-camp  to  say  that  he  had  no  authority  to  grant 
an  armistice  without  reference  to  General  Stoessel,  and  that  he 
suggested  the  sending  of  an  application  to  that  authority.  The 
Japanese  complied.  StoessePs  reply  was  that  he  would  agree 
to  a  five-hours'  armistice,  provided  it  was  universal.  Of  course, 
General  Nogi  could  not  agree  to  suspend  the  siege  operations 
at  every  quarter  for  the  sake  of  recovering  the  bodies  of  the 
dead  at  one  position.  Stoessel  must  have  known  quite  well  that 
this  condition  was  prohibitive,  and  it  would  thus  appear  that 
the  amenities  of  warfare  do  not  find  favour  in  his  eyes.  What 
did  succeed,  however,  was  a  proposal  emanating  from  the  Japa- 
nese that  each  side  should  furnish  to  the  other  a  detailed  list 
of  the  prisoners  held.  This  was  done  on  the  14th  of  Dec,  1904. 
The  list  handed  in  by  the  Eussians  contained  105  names,  in- 
cluding the  men  of  the  navy  as  well  as  those  of  the  army,  and 
therefore  doubtless  included  those  captured  in  connection  with 


222  LAWS   OF   LAND   WARFARE.  [PART  f& 


the  blocking  of  operations.1  But  the  Russians  explained  that 
the  list  was  not  complete,  as  some  of  the  Japanese  prisoners 
declined  to  give  their  names  or  to  indicate  the  corps  to  which 
they  belonged.  The  Russians  then  asked  whether  the  Japanese 
would  undertake  to  convey  letters  and  telegraphic  messages  for 
them  to  their  families  in  Russia.  The  Japanese  agreed  at  once, 
and  a  number  of  letters  were  handed  over.  But  the  Japanese 
refused  to  receive  postage  dues,  as  well  as  200  rubles  which 
were  offered  in  payment  of  telegrams,  and  finally  the  Russians 
handed  over  this  money  to  the  Japanese  Red  Cross  Society. 

Another  touching  incident  was  that  the  Russians  produced 
a  sword  which,  they  said,  had  been  worn  by  a  Japanese  officer 
who  fought  with  conspicuous  bravery  in  the  attack  on  the  26th 
of  November,  and  who  fell  within  the  lines.  It  was  a  Japanese 
blade,  evidently  executed  by  some  celebrated  smith  of  ancient 
times,  and  the  Russians  had  the  noble  thought  that  the  dead 
man's  family  would  like  to  have  this  memento.  Colonel  Wa- 
tanabe  received  the  sword  with  all  thankfulness  and  reverence. 

Sect.  IV.     Naval  Protocol  of  Armistice. 

Early  on  the  morning  of  the  18th  inst,  Rear-Admiral  Shi- 
mamura,  with  the  cruisers  Iwate  and  Niitdka  and  the  destroy- 
ers Oboro  and  Ahebono,  arrived  off  Lojinpho,  Korea,  and  met 
there  a  squadron  under  Rear- Admiral  Jessen,  consisting  of  the 
Rossia,  Bogatyr,  and  two  destroyers.  The  meeting  was  then 
held  between  the  respective  commissioners,  Rear-Admiral  Shi- 
mamura,  Commander  Akiyama,  and  Lieutenant  Yamamoto  rep- 
resenting our  side,  and  Rear-Admiral  Jessen,  Colonel  Budberg, 
Chief  of  Staff  of  the  Vladivostock  Garrison,  and  Lieutenant 
Tobrobolsky,  a  Naval  Staff  Officer,  representing  the  Russians. 
The  draft  of  armistice  proposed  by  the  Russian  commissioners 
consisted  of  eight  articles,  all  of  which,  however,  were  found 
quite  unsatisfactory.     The  Japanese   commissioners   therefore, 

1  The  details  of  the  blocking  of  Port  Arthur  are  as  follows :  On  the  22d  of  February, 
1904,  the  Japanese  naval  officers  boarded  six  merchantmen,  dashed  into  the  entrance  of 
Port  Arthur,  and  sank  the  vessels  to  block  the  port.  On  the  26th  of  March,  a  second 
attempt  was  made  by  several  other  vessels,  and  on  the  3d  of  May  the  third  attempt  was 
made  by  many  vessels.    Many  brave  officers  sank  with  the  vessels. 


CHAP.  VIII.,  SECT.  IV.]      NAVAL   PROTOCOL   OF  ARMISTICE.     223* 

in  consideration  of  the  condition  of  naval  affairs,  rejected 
them  in  toto.  The  Russians,  however,  earnestly  pleaded  for 
certain  concessions,  which  after  several  hours'  discussion  were- 
finally  granted,  thus  securing  the  conclusion  of  the  armistice. 

The  following  statement  was  published  by  the  Naval  Staff 
of  the  Imperial  Military  Headquarters  on  Thursday  afternoon: 

In  order  to  conclude  the  terms  of  armistice  in  accordance 
with  Art.  V.  of  the  Russo-Japanese  Protocol  relating  to  armis- 
tice, Rear-Admiral  Shimamura,  representing  Admiral  Togo,. 
Commander-in-Chief  of  the  Combined  Fleet,  proceeded  with  a 
portion  of  the  fleet  to  the  entrance  of  the  harbour  of  Lojinpho 
and  met  there  a  squadron  under  Rear- Admiral  Jessen,  repre- 
senting the  Russian  Navy,  on  September  18th,  and  fixed  the: 
sphere  of  armistice  on  the  seas  as  follows: 

Agreement  Relating  to  the  Delimitation  of  the  Sphere  of 
Armistice  on  Sea. 
The  undersigned,  Rear- Admiral  Shimamura  and  Rear- Admiral  Jessen,. 
who  have  been  properly   authorised  to  act  on  behalf  of  the  respective 
Commanders-in-Chief  of  the  Fleets,  conclude  an  agreement  as  follows: 

The  sea  bordering  on  the  coasts  of  the  belligerents  is  divided  as. 
follows: 

The  boundary  line  starts  from  Lejionoff  promontory,  runs  30  nautical 
miles  to  the  southeast,  connects  the  point  42°  N.  Lat.  and  136°  E.  Long. ; 
point  46°  N.  Lat.  and  140°  E.  Long.;  point  48°  N.  Lat.  and  141°  E. 
Long.;  point  50°  N.  Lat.  and  141°  23'  E.  Long.;  and  point  51°  48' 
N.  Lat.  and  141°  23'  E.  Long.  The  narrowest  portion  of  the  Mamiya 
straits  between  the  last-mentioned  point  and  point  53°  27'  N.  Lat.  and 
141°  27£'  E.  Long,  is  made  a  neutral  zone.  The  boundary  line  again 
starts  from  the  point  53°  27'  N.  Lat.  and  141°  27£'  E.  Long,  and  runs 
to  the  point  56°  N.  Lat.  and  142°  E.  Long,  and  point  56°  N.  Lat.  and 
148°  E.  Long.,  and  then,  passing  through  the  central  point  of  the  Shu- 
mushu  straits,  coincides  with  the  parallel  of  50°  50'  N.  Lat. 

The  narrowest  part  of  the  Mamiya  straits  is  made  a  neutral  zone. 

The  navies  of  both  belligerents  are  prohibited  from  passing  the  said 
boundary  line. 

This  resolution  comes  into  force  from  the  day  of  signing  and  will  be 
valid  during  the  period  of  armistice. 

As  a  guarantee  of  the  above,  each  representative  signs  his  name  to 

^  '  (Signed)       Rear- Admiral  Shimamura. 

Rear- Admiral  Jessen. 
September  18th,  1905. 


224  LAWS   OF  LAND   WARFARE.  [PART  II. 

During  the  meeting,  Admiral  Jessen  asked  the  Japanese 
representative  for  permission  to  despatch  a  transport  from 
Vladivostock  to  Kamtchatka  with  provisions  and  other  neces- 
saries, on  the  ground  that  as  the  communications  with  that 
district  would  be  blocked  by  ice  after  a  fortnight,  the  people 
there  would  probably  die  from  starvation  if  the  supplies  were 
not  at  once  sent.  Owing  to  the  pressure  of  time,  Kear-Admiral 
Shimamura  immediately  consented  to  the  request  and  granted 
a  pass  to  the  Eussian  Admiral. 

Sect.  V.     Armistice  in  North  Korea. 

Colonel  Oba,  the  commissioner  appointed  from  the  North 
Korean  Army  to  conclude  terms  of  armistice  with  the  Eussian 
Army  in  that  district  or  quarter,  met  the  Eussian  Commissioner 
on  Sept.  16th,  1905,  at  a  place  north-east  of  Hoiryong. 

The  conference  on  that  day  was  ineffective,  as  the  Eussian 
Commissioner  had  not  been  fully  authorised  to  conclude  the 
terms  of  armistice.  A  second  meeting  took  place  on  the  20th. 
But  that  attempt  also  proved  fruitless. 

Eussian  papers  attribute  the  non-conclusion  of  an  armistice 
in  North  Korea  to  the  unreasonable  proposals  of  the  Japanese 
Commissioners.  But  the  truth  is  that  the  Eussians  themselves 
proposed  terms  that  were  unacceptable  to  the  Japanese.  For 
instance,  in  spite  of  the  fact  that  the  Japanese  are  now  in 
occupation  of  the  left  bank  of  the  Tumen,  on  the  upper  reaches 
of  the  river,  the  Eussians  proposed  that  the  river  itself  be 
made  the  boundary  of  the  spheres  of  influence  of  the  respective 
armies.  The  Japanese  commissioners  refused  to  accept  such 
terms,  and  the  Eussians  withdrew,  promising  that  they  would 
consult  their  commander-in-chief.  So  far  there  has  been  no 
intimation  of  a  final  decision  from  the  Eussian  side;  but  in 
view  of  the  fact  that  there  exists  a  sort  of  oral  promise  of  truce 
and  that  the  day  of  the  ratification  of  the  peace  treaty  is  draw- 
ing near,  the  formal  arrangements  for  an  armistice  in  North 
Korea  can  be,  it  is  believed,  dispensed  with,  without  any  incon- 
venience to  either  side. 


CHAPTER   IX. 

THE    OCCUPATION    OF    SAKHALIN. 

It  was  by  the  occupation  of  Sakhalin  that  the  rules  pre- 
scribed in  Arts.  XLVII.  to  LVI.  of  The  Hague  Convention 
were  put  into  practical  application.  The  occupation  of  Man- 
churia was  not  an  occupation  of  the  enemy's  territory,  for  it 
was  on  the  neutral  territory  of  China.  Thereupon  the  occupa- 
tion of  Sakhalin  is  taken  as  a  good  example  of  the  application 
of  the  rules  of  occupation.  It  should  be  added  with  gratitude, 
that  much  of  the  material  hereinafter  mentioned  has  been  sup- 
plied by  Mrl  Ninagawa,  who  was  a  legal  adviser  of  the  Japanese 
Sakhalin  Army. 

Sect.  I.  Premeditated  Plan  for  the  Occupation  of  Sakhalin 
Island. 

More  than  half  of  Sakhalin  was  originally  a  Japanese  do- 
minion, and  the  occupation  of  the  island  was  something  like 
the  recovery  of  a  lost  territory,  so  that  its  occupation  was 
looked  upon  by  the  Japanese  people  with  a  specially  deep  in- 
terest. On  the  island,  therefore,  the  Japanese  Army  not  only 
endeavoured  to  adhere  to  the  rules  of  International  Law,  but 
paid  attention  to  its  land,  forests,  people,  and  all  other  things. 

A  plan  in  connection  with  the  occupation  had  been  framed 
by  the  Japanese  army,  the  principal  points  of  which  were  as 
follows : 

1.  The  extent  of  the  occupation  shall  comprise  the  whole  of 
Sakhalin   Island,   adjacent   islands,   and   territorial  waters. 

2.  The  position  of  army  stations  during  the  time  of  the  occu- 
pation shall  be  .decided  according  to  circumstances ;  but  the  chief  mili- 
tary administration  offices  shall  be  stationed  at  Alexandrovski,  Zuikoff, 

225 


226  LAWS  OF   LAND   WARFARE.  [PART   II. 

and  Korsakovski  under  the  charge  of  the  highest  officer  of  the  army 
to  be  stationed  at  each  of  them,  their  administrative  boundaries  fol- 
lowing the  old  lines  of  district  demarcation.. 

3.  Any  movable  property  which  belongs  to  the  enemy's  state  and 
which  is  useful  in  military  operations,   shall  be  seized  as  booty. 

4.  New  plans  shall  not  be  inaugurated  or  existing  laws  and 
customs  altered,  save  in  case  of  necessity  for  administration  or  for 
military  operations. 

5.  The  services  of  the  old  administrative  officials  (those  con- 
nected with  civil  suit,  collection  of  taxes,  post,  telegraph,  fisheries, 
forestry,  and  mining)  may  be  made  use  of  as  they  are  required,  so 
far  as  they  do  not  affect  the  safety  of  our  army;  and  in  this  case 
a  certain  remuneration  shall  be  paid  them.  It  depends  upon  cir- 
cumstances whether  these  officials  shall  be  employed  as  officials  or 
as  mere  advisers.  If  they  avail  themselves  of  their  authority  for 
impeding  our  military  operations,  they  shall  be  punished  according  to 
martial  law. 

6.  Taxes  and  other  imposts  shall  be  collected  as  far  as  possible  in 
accordance  with  the  existing  rules,  and  applied  towards  the  expenses 
of  administration.  The  business  of  the  inhabitants  (including  neu- 
trals) shall  therefore  not  be  prohibited;  but  if  they  fail  to  pay  the 
taxes  or  imposts,  or  behave  illegally,  not  only  shall  their  business 
be  prohibited,  but  a  fine  may  be  imposed  upon  them. 

7.  No  one  shall  be  allowed  to  keep  arms  or  ammunition  unless 
by  special  permit  from  our  army. 

8.  Irregular  combatants,  individual  opposers,  and  those  who  speak 
or  behave  against  our  army,  shall  be  punished  according  to  martial  law. 

9.  Prisoners  in  jail  and  those  recognised  as  harmful  to  our 
army  may  be  sent  away  into  the  Maritime  Province  by  certain  reason- 
able means. 

10.  Those  people  who  desire  to  return  to  their  home  country  shall 
be  sent  to  the  Maritime  Province. 

11.  The  inhabitants  shall  not  be  allowed  to  hold  communication 
or  correspondence  with  any  places  outside  the  island.  They  shall  also 
not  be  allowed  to  hold  an  assembly  or  to  issue  printed  matter  without 
permit. 

12.  The  rate  of  exchange  between  our  paper  money  and  the  Rus- 
sian coins  shall  be  fixed  and  published. 

13.  Until  the  time  of  completing  the  occupation,  no  vessels  or 
persons,  other  than  those  useful  in  military  operations,  shall  be  allowed 
to  enter  the  territorial  waters  or  the  island.  This  rule  holds  good 
even  after  the  completion  of  the  occupation  for  those  without  a  special 
permit  from  the  Minister  of  War  or  the  Commander  of  the  Occupation 


CHAP.  IX.,  SECT.  II.]     SURRENDER  OF  THE  SAKHALIN  ARMY.    227 

Army.     If  the  Minister  of  War  issues  such  a  permit,  the  Commander 
of  the  Occupation  Army  shall  be  notified. 

14.  Fishing  being  harmful  to  military  operations,  it  shall  be  pro- 
hibited, except  for  those  with  a  special  permit  granted  on  account  of 
necessity  to  the  army. 

It  was  in  accordance  with  the  foregoing  premeditated  plan 
that  the  occupation  of  Sakhalin  was  carried  out,  although  this 
does  not  mean  that  every  rule  of  the  plan  was  given  a  practical 
application. 

Now,  an  account  of  the  practical  side  of  the  occupation  will 
be  treated  under  several  separate  heads. 

Sect.  II.     Surrender  of  the  Sakhalin  Army. 

At  the  time  when  the  Japanese  army  occupied  Luikoff  on 
the  27th  July,  1905,  the  Russian  Army,  which  had  retreated 
from  Alexandrovski,  was  far  away  in  the  direction  of  Onor. 
An  immediate  pursuit  of  the  enemy  was  made  by  our  army, 
advice  being  sent  at  the  same  time  through  a  Russian  official 
remaining  at  Luikoff  to  General  Lyabnoff,  Commander  of  the 
Russian  Sakhalin  army,  to  come  to  terms.  On  the  30th  of 
July  Lieutenant  Actinoff  sought  the  Japanese  Army  as  an 
envoy  and  brought  the  following  letter: 

Onor,  18th  July,  1905. 
Commander  Japanese  Outpost  Army. 
Sir: 

In  order  to  stop  warlike  operations,  for  the  sake  of  avoiding  fur- 
ther useless  shedding  of  blood,  I  hereby  request  to  know  what  the 
commander  of  your  army  proposes  to  do.  I  hope  your  reply  will  be 
given  to  Actinoff,  whom  I  have  sent  to  you  with  the  present  letter,  as 

a  herald. 

Yours  truly, 

Lietjt.-General  Lyabnoff, 

Commander  Sakhalin  Army. 

There  was  also  another  letter,  namely : 

Onor,  18th  July,  1905. 
Commander  Japanese  Army,  Sakhalin. 
Sir: 

Want  of  medicine  and  bandage  materials,  as  well  as  the  impossi- 
bility of  giving  treatment  to  the  wounded,  has  compelled  me,  for  the 
sake  of  humanity,  to  accept  your  advice,  sent  through  the  Governor  of 


228  LAWS   OF   LAND   WARFARE.  [PART   II. 

Tuimoff  province,  to  stop  further  bloodshed,  on  condition  of  your  guar- 
anteed protection  of  the  lives  and  properties  of  the  inhabitants  of  the 
island. 

Yours  truly, 
(Signed)     Lieut.-General,  Lyabnoff, 

Commander  Sakhalin  Army. 

In  reply  to  these  letters,  the  Japanese  Army  proposed  the 
following  conditions,  to  which  Lyabnoff  consented: 

Terms  of  Capitulation. 

1.  The  soldiers  of  the  Russian  army  and  their  attendants  all  to 
disarm  themselves  and  to  be  made  the  prisoners  of  the  Japanese  Army. 

2.  To  hand  over  to  the  Japanese  Army  the  Russian  arms,  horses, 
provisions,  and  other  military  articles,  as  well  as  the  money,  docu- 
mentary securities,  and  other  movable  and  immovable  properties  that 
belong  to  the  state  in  the  same  condition  as  they  now  stand. 

3.  The  Russian  Army  to  hand  over  to  the  Japanese  Army  the 
papers  and  books  useful  in  the  administration  of  Sakhalin. 

4.  The  Russian  Army  to  hand  over  to  the  Japanese  Army  all 
the  papers  and  books  in  connection  with  the  organisation  of  the  Sak- 
halin garrison. 

5.  For  putting  in  order  the  persons,  horses,  and  all  other  things 
to  be  delivered  to  the  Japanese  Army,  the  Russian  Army  shall  or- 
ganise a  committee  of  suitable  persons  to  consult  with  a  committee 
from  the  Japanese  Army  as  to  the  procedure  of  the  delivery. 

6.  With  regard  to  the  particulars  for  carrying  out  the  above 
clauses,  the  Japanese  Committee  shall  give  instructions  to  the  Russian 
Committee. 

7.  If  the  present  Terms  of  Capitulation  are  signed,  the  Com- 
mander of  the  Russian  Army  and  his  staff  shall  come  to  Luikoff  on  the 
1st  of  August   (19th  of  July  by  the  Russian  calendar),  1905,  at  7  p.m. 

8.  The  Japanese  and  Russian  Armies  shall  each  make  out  one 
copy  of  these  Terms  of  Capitulation,  which  shall  come  into  force  im- 
mediately on  the  day  of  signing. 

Dated,  Hamdase,  31st  of  July  of  the  38th  year  of  Meiji. 

"  "  18th  of. July,  1905,  by  the  Russian  calendar. 

(Signed)     S.  Koidzumi, 
Chief  of   the  General   Staff  of  the  Japanese  Sakhalin 
Army,  and  Plenipotentiary  of  the  Japanese  Army. 
(Signed)     Tarnsenko, 
Commander  of  the  Alexandrovski  Reserve  Battalion,  and 
Plenipotentiary  of  the  Russian  Army. 


CHAP.  IX.,  SECT.  III.]      THE   MILITARY  ADMINISTRATION.         229 

The  Terms  of  Capitulation  were  instantly  put  into  opera- 
tion, and  64  Kussian  officers  and  4319  non-commissioned  offi- 
cers and  men  came  under  the  Japanese  control. 

Remark.  It  is  an  illegal  contract  in  International  Law  to  agree  to 
the  transfer  of  land  by  a  capitulation  agreement,  as  was  done  by  the 
French  Commander  in  his  capitulation  agreement  in  the  Franco-German 
War  of  1870,  when  the  whole  French  Army  surrendered  to  the  Ger- 
mans at  Verdan;  and  he  has  received  severe  blame  from  scholars  on 
that  account.  (See  Bonfils,  Art.  263.)  With  regard  to  the  transfer 
of  the  immovable  property  mentioned  in  the  Russian  Capitulation 
Agreement  made  out  at  Sakhalin,  it  was  meant  to  refer  to  such  im- 
movable property  as  an  arsenal  which  could  legally  be  made  booty  of 
war;  our  army  having  never  intended  to  demand  of  the  Russian  Army 
anything  other  than  a  legal  contract. 


Sect.  III.     The  Military  Administration  System. 

As  was  mentioned  in  the  premeditated  plan,  the  military 
administration  in  Sakhalin  was  carried  out  at  the  three  places 
of  Korsakovski,  Alexandrovski,  and  Luikoff,  placing  the  high- 
est officer  of  each  place  in  charge  of  its  Administration  Office, 
with  an  Administration  Committee  organised  under  him. 
Thus,  the  principal  Military  Administration  Office  in  the  south 
was  opened  at  Korsakovski,  where  the  headquarters  of  an  army 
brigade  was  stationed;  and  in  the  north,  at  Alexandrovski,  the 
site  of  the  Headquarters  of  the  Army,  and  the  third  at  Luikoff, 
also  the  site  of  the  headquarters  of  another  army  brigade.  At 
Alexandrovski,  the  capital  of  Sakhalin  Island,  the  administra- 
tion was  carried  out  with  Colonel  Kawamura,  Chief  of  the 
Sakhalin  Army  Staff,  as  the  chairman  of  the  Administration 
Committee  that  consisted  of  the  Colonel  himself,  staff  adju- 
tants, legal  advisers,  and  some  other  officers  and  those  of  equal 
rank,  all  of  the  Army  Headquarters,  and  the  result  was  on 
the  whole  an  excellent  management.  When  the  Headquarters 
of  the  Sakhalin  army  was  to  leave  North  Sakhalin,  the  mili- 
tary administration  was  intrusted  to  certain  officers  of  the  51st 
Foot  Kegiment,  who  formed  a  committee  for  handing  North 


230  LAWS   OF   LAND   WARFARE.  [PART  II. 

Sakhalin  over  to  Kussia,  and  who   continued  to   conduct  the 
administration  well  until  the  time  of  the  actual  transfer. 

In  order  to  avoid  mistakes  against  International  Law  in 
the  administration,  the  Commander  of  the  Sakhalin  army  or- 
dered the  following  instructions  to  be  drawn  up  and  distrib- 
uted among  the  Administration  Committees,  namely: 

Instructions   to   Military  Administrative   Officers. 

1.  The  object  of  the  military  administration  officers  shall  be  to 
preserve  the  tranquillity  of  the  army  and  the  order  of  the  occupied 
territory. 

2.  The  military  administration  officers  shall  respect  the  laws  in  force 
in  time  of  peace  and  otherwise,  except  in  case  of  absolute  impediment. 

3.  It  is  forbidden  to  compel  the  population  of  an  occupied  terri- 
tory to  take  part  in  military  operation  against  their  own  country. 

4.  It  is  forbidden  to  constrain  the  population  of  an  occupied  ter- 
ritory to  recognise,  by  the  taking  of  an  oath,  the  power  of  the  enemy. 

5.  Family  honour  and  rights,  the  lives  of  individuals  and  their 
private  property,  as  well  as  their  religious  convictions  and  the  right 
of  public  worship,  are  to  be  respected.  Private  property  is  not  to  be 
confiscated. 

6.  If  the  occupant  collects  in  the  occupied  territory  the  imposts, 
duties,  and  tolls  established  for  the  benefit  of  the  state,  he  shall  do 
so,  as  far  as  possible,  in  accordance  with  existing  rules  of  assessment 
and  apportionment,  and  the  obligation  shall  devolve  upon  him  of  pro- 
viding for  the  expenses  of  the  administration  of  the  occupied  territory 
in  the  proportion  to  which  the  legal  government  was  bound  to  con- 
tribute. 

7.  If,  in  addition  to  the  imposts  contemplated  in  the  preceding 
article,  the  occupant  levies  other  money  contributions  in  the  occupied 
territory,  he  can  do  so  only  to  the  extent  of  the  needs  of  the  army 
or  the  administration  of  the  occupied  territory. 

8.  No  collective  penalty,  pecuniary  or  otherwise,  shall  be  imposed 
upon  communities  because  of  individual  acts  for  which  they  could 
not  be  regarded  as  collectively  responsible. 

9.  The  military  administration  officers  can  hold  trials,  give  judg- 
ment, and  inflict  punishment  in  accordance  with  martial  law,  as  well 
as  the  military  court  regulations. 


CHAP.  IX.,  SECT.  IV.]      TREATMENT   OF  THE   POPULATION.       231 

Sect.  IV.  Treatment  of  the  Population  of  the  Occupied 
Territory. 

I.  Russian  Civil  Officials,  Their  Families,  and  the  Families 
of  Military  Officers  at  Sakhalin. 

Even  after  Japanese  occupation  of  Sakhalin,  Kussian  civil 
officials,  their  families,  and  the  families  of  military  officers 
could  safely  remain  on  the  island  under  the  protection  of  the 
Japanese  Army;  but  when  General  Lyabnoff  surrendered  to 
Japan  with  his  army,  all  the  civil  officials,  from  Yon  Burge, 
the  highest  in  rank,  down  to  the  policemen,  lowest  in  rank,  with- 
out distinction  of  either  executive  or  judicial  officials,  desired 
to  give  up  their  offices  and  to  return  to  their  home  country 
with  their  families  and  their  properties,  and  sent  in  an  appli- 
cation for  the  permission  to  the  Japanese  Commander  under 
their  joint  signatures.  According  to  International  Law,  the 
civil  officials  of  an  occupied  territory  cannot  be  compelled  to 
continue  to  look  after  their  original  offices;  but  as  they  are 
naturally  versed  in  the  customs  and  usages  of  the  territory, 
it  is  customary  to  make  them  attend  to  their  old  business  as 
far  as  possible.  But  in  Sakhalin  all  of  the  civil  officials  de- 
manded permission  to  go  away  without  exception;  so  that 
Japan  had  to  look  after  every  detail  of  administration  her- 
self, to  the  great  inconvenience  of  her  army.  However,  as  it 
was  not  a  proper  thing  for  them  to  be  refused  their  applica- 
tion, the  Japanese  Army  agreed  to  let  them  go  away,  asking 
them  at  the  same  time  to  wait  till  Japanese  steamers  should 
arrive  at  Alexandrovski.  In  the  meantime,  the  Sakhalin  army 
gave  them  the  following  conditions  to  be  observed  by  them  on 
their  leaving  the  island,  namely : 

1.  The  passage  and  food  expenses,  from  Alexandrovski  to  Aomori, 
Japan,  shall  be  paid  by  the  Japanese  Government. 

2.  On  their  arrival  in  Japan,  they  shall  be  handed  over  to  the 
French  Consul,  under  the  instructions  of  the  Japanese  authorities. 

3.  The  capacity  of  transport  being  of  a  limited  nature,  they  shall 
be  allowed  to  take  with  them  only  such  personal  luggages  as  can  be 
carried  with  them.     Any  property  over  this  limit,  no  matter  whether 


232  LAWS   OF   LAND   WARFARE.  [PART   II. 

it .  be   movable   property  or   immovable,   shall  be  disposed   of   prior  to 
their  departure. 

4.  They  shall  promise  in  writing  that  even  if  they  leave  any  prop- 
erty on  the  island,  they  shall  not  afterwards  offer  any  claims  whatever 
to  the  Japanese  Government  respecting  it. 

The  Russian  officials  agreed  to  these  conditions,  and  left 
Sakhalin  after  disposing  of  their  properties. 

II.     Russian  Subjects. 

In  conformity  with  the  principles  of  International  Law, 
the  Japanese  Sakhalin  army  did  its  best  to  protect  those  Rus- 
sian subjects  who  had  no  direct  relation  with  warfare,  so  as 
to  enable  them  to  pursue  their  respective  occupations  without 
inconvenience.  Of  the  inhabitants  in  Sakhalin,  those  who 
had  formerly  been  criminals  formed  a  majority,  although  ordi- 
nary people  living  in  this  island  for  the  purpose  of  carrying 
on  commerce  or  industry  could  not  be  said  to  be  few  in  num- 
ber; and  it  was  this  latter  class  of  people  that  the  Sakhalin 
Army  specially  endeavoured  to  protect,  and  to  make  them  feel 
at  rest  for  the  safety  of  their  lives  and  properties.  But  there 
were  also  some  among  them  who  desired  to  return  to  their 
home  country  via  Japan,  while  a  comparative  few  wanted  to 
go  direct  to  Mcolskoe  on  the  opposite  coast.  The  army- 
granted  both  kinds  of  application;  for  those  going  to  Aomori, 
Japan,  on  the  same  conditions  as  those  given  to  the  officials, 
and  for  those  going  to  Nicolskoe,  on  condition  that  they  should 
go  there  wholly  at  their  own  expense,  but  that  they  could  carry 
their  properties  with  them  without  any  limit  at  all. 

In  the  meantime  the  Sakhalin  army  published  the  follow- 
ing notification  for  the  convenience  of  those  returning  to  their 
own  country: 

Notification. 

Those  inhabitants  of  this  island  returning  to  their  own   country^ 
who   desire  to   exchange   their  Japanese  money   into  Russian  currency, 
may  have  exchange  made  at  the  Cash  Department  of  the  Sakhalin  Army. 

Exchange  made  from  9  a.m.  till  3  p.m.  every  day. 

August,  1905.  Headquarters,  Sakhalin  Army. 


CHAP.  IX.,  SECT.  IV.]      TREATMENT  OF  THE   POPULATION.       233 

Eelief  of  Russian  paupers,  as  well  as  medical  treatment 
given  to  the  sick  deserve  mention.  Of  the  Russian  paupers 
who  applied  for  relief,  those  who  proved  on  examination  to  be 
physically  unable  to  support  themselves  on  account  of  their 
being  immature,  infirm,  or  superannuated,  were  given  an  allow- 
ance of  dried  bread,  tinned  beef,  flour,  and  some  such  pro- 
visions out  of  the  booty  captured  from  the  enemy.  To  avoid 
confusion  and  partiality  in  giving  the  relief  to  so  many  people 
every  day,  one  week's  provisions  were  distributed  among  them 
each  time,  providing  every  one  of  them  with  a  certificate  which 
proved  the  date  of  the  relief  given,  and  which  had  to  be  pre- 
sented when  he  wanted  another  supply.  With  regard  to  people 
seriously  ill,  those  who  were  helpless  were  taken  into  sick  rooms 
set  apart  specially  for  such  a  purpose,  and  attended  all  the  time 
by  several  Russian  nurses,  who  were  engaged  with  wages  in 
kind  out  of  the  booty.  The  patients  were  provided  with  pro- 
visions, shirts,  blankets,  and  other  necessaries  also  out  of  the 
booty,  and  given  treatment  every  day  by  our  military  surgeons, 
under  the  frequent  superintendency  of  administration  officers. 
As  to  those  slightly  sick,  Japanese  hospitals  gave  them  medical 
treatment  without  any  limit  to  their  number — medicines  and 
other  materials  having  all  been  taken  from  the  Russian  mili- 
tary hospitals.  Thus  the  paupers  and  others  of  Sakhalin  were 
so  much  pleased  with  the  Japanese  administration  that  they 
greeted  with  "  Banzai  "  every  Japanese  soldier  they  met  on  the 
way. 

The  next  thing  to  be  mentioned  shall  be  the  special  arrange- 
ments devised  by  the  Sakhalin  Army  for  the  protection  of  the 
inhabitants  on  the  island.  In  Sakhalin  there  had  been  several 
government  shops  established  on  the  co-operation  principle  from 
which  the  islanders  used  to  get  their  daily  supplies;  but  after 
the  Japanese  occupation  of  the  island  such  shops  were  all 
'closed,  and  the  people  felt  some  inconvenience  for  want 
of  them.  The  Japanese  Army  therefore  published  the  fol- 
lowing Regulations  for  the  Convenience  of  the  People  at 
large : 


234  LAWS   OF   LAND   WARFARE.  [PART  II. 

Provisionary  Regulations  for  Private  Shop   Organisation. 

1.  The  object  of  establishing  the  shop  shall  be  to  supply  daily 
necessaries  to  the  Russian  subjects  at  fixed  prices. 

The  shop  may  make  sales  also  to  Japanese  soldiers  and  their  at- 
tendants. 

2.  The  shop  shall  be  opened  for  the  present  at  Alexandrovski. 

3.  The  shop  shall  be  under  the  superintendence  of  the  Military 
Administration  Office  in  every  respect.  The  Military  Administration 
Committee  shall  have  the  right  to  examine  the  merchandise,  books,  and 
papers  of  the  shop,  if  found  necessary. 

4.  The  shop  shall  report  to  the  Military  Administration  Office  the 
descriptions  and  prices  of  the  articles  to  be  sold,  and  shall  be  sub- 
ject to  its  approval.  In  case  of  altering  the  prices,  the  alterations 
shall  also  be  reported  to  the  Military  Administration  Office  for  its 
approval,  with  an  explanation  of  the  reasons  attached,  before  such 
alterations  shall  actually  be  made. 

5.  The  shop  shall  report  to  the  Military  Administration  Office 
the  descriptions  and  value  of  the  articles  sold  every  week. 

6.  The  shop  shall  post  up  conspicuously  a  price-list  (in  both 
Japanese  and  Russian  currencies)  of  the  articles  to  be  sold,  in  both 
the  Japanese  and  Russian  languages. 

7.  The  names  of  the  shop's  staff  shall  be  reported  to  the  Military 
Administration  Office,  and  any  alteration  of  the  personnel  shall  also 
be  reported. 

8.  The  shop's  staff  shall  not  hold  any  correspondence  concerning 
the  army,  nor  shall  it  have  any  relations  other  than  the  business 
of  the  shop. 

9.  The  business  hours  of  the  shop  shall  be  fixed  in  accordance 
with  the  instructions  of  the  Military  Administration  Office. 

10.  The  shop's  staff  shall  not  under  any  pretext  whatever  effect 
the  transfer  of  movable  or  immovable  properties  owned  by  the  Rus- 
sian inhabitants,  nor  shall  it  create  either  pledge  or  mortgage  on 
them,  unless   approved   by  the  Military  Administration   Office. 

11.  The  Military  Administration  Office  reserves  the  right  to  order 
the  evacuation  of  the  shop  or  the  withdrawal  of  its  staff.  And  in  this 
case,  the  shop's  staff  shall  not  sue  for  any  damages  arising  out  of  such 
a  step. 

III.     Exiles. 

(a)  Political  Exiles.  According  to  the  principles  of  In- 
ternational Law,  it  is  customary  not  to  hand  over  political 
exiles  to  their  home  government,  even  if  the  latter  demands 


CHAP.  IX.,  SECT.  IV.]      TREATMENT   OF  THE   POPULATION.       235 

their  extradition.  It  was  therefore  the  policy  of  the  Japanese 
Army  on  its  occupying  Sakhalin  Island  not  to  hand  over  to 
the  Eussian  authorities  those  political  exiles  who  had  once 
come  under  Japan's  control,  but  to  make  them  win  their  lib- 
erty in  accordance  with  the  principle  above  referred  to.  For- 
tunately, Dr.  Russel,  an  American  resident  at  Kobe,  Japan, 
made  an  offer  to  send  the  Russian  political  exiles  at  Sakhalin 
to  the  free  country  of  America  at  the  expense  of  Americans. 
The  offer  was  accepted  by  the  Japanese  Government  and  trans- 
mitted to  those  political  exiles  at  Sakhalin,  who  were  six  in 
number,  including  a  Doctor  of  Laws  by  the  name  of  Trigony. 
This  Doctor  of  Laws  and  two  other  political  exiles  accepted 
the  offer  and  came  to  Aomori  in  company  with  the  Russian 
Sanitary  Staff.  At  Yokohama  they  received  kind  assistance  at 
the  hands  of  Dr.  Russel  and  Mr.  George  Kennan,  an  Ameri- 
can journalist,  and  started  for  America.  The  other  three 
exiles  preferred  to  remain  at  Sakhalin  on  account  of  their  hav- 
having  large  families,  some  of  whom  were  seriously  ill  at  that 
time. 

This  release  of  political  exiles  won  the  unanimous  applause 
of  civilised  nations,  and  it  was  by  the  Jewish  people  in  the 
United  States' of  America  that  the  affair  was  received  with  the 
strongest  approval.  The  following  is  the  correspondence  from 
Washington  under  the  date  of  July  20,  1905 : 

"Reports  of  the  release  of  political  exiles  from  Sakhalin  aroused 
lively  interest  among  the  Jews  in  this  country  on  account  of  the 
presence  of  a  small  number  of  their  race  among  them,  as  did  also  in- 
formation regarding  their  status  after  our  occupation." 

A  petition,  as  inserted  below,  with  a  long  list  of  signatures 
was  sent  to  the  Japanese  Legation  in  America: 

Petition  in  Regard  to  Russian  Political  Prisoners  on  Sakhalin  Island. 

To  His  Excellency,  Kogoro  Takahira,  Envoy  Extraordinary  and  Min- 
ister Plenipotentiary  of  Japan. 

SiB: 

Having  assumed  supreme  authority  in  the  island  of  Sakhalin, 
the  Japanese  Government  has  now  in  its  custody  a  number  of  Russian 


236  LAWS  OF  LAND   WARFARE.  [PART   II. 

political  prisoners  and  exiles.  Some  of  these  were  banished  to  the 
Sakhalin  penal  colony  after  having  served  terms  of  fifteen  and  twenty 
years  in  the  jail  of  the  Schlusselburg  Fortress.  Others  were  deported 
without  even  the  formality  of  a  trial  by  court-martial. 

These  men  and  women  have  been  punished  for  seeking  to  realise 
in  Russia  the  same  principles  of  human  liberty  which  are  honoured 
by  Japan  and  by  all  other  enlightened  nations. 

They  are  now  detained  without  any  warrant  of  law,  for  it  is  not 
the  duty  of  any  government  to  enforce  the  sentence  of  foreign  tribu- 
nals, and  especially  in  relation  to  offences  of  a  political  nature.  On 
the  other  hand,  Japan  has  never  surrendered  to  Russia  political  of- 
fenders who  have  sought  refuge  on  Japanese  soil;  and  surely  she 
will  not  establish  such  a  precedent  now,  at  a  time  when  public  sen- 
timent in  Russia  itself  demands  amnesty  for  all  political  offenders. 

The  established  policy  of  Japan,  as  well  as  justice  to  the  political 
prisoners  in  Sakhalin,  calls  for  the  immediate  release  of  these  men 
and  women. 

We,  therefore,  the  undersigned  citizens  and  residents  of  the  United 
States  of  America,  respectfully  petition  the  Japanese  Government  to 
add  another  example  to  its  distinguished  record  of  humanity  and  fair- 
ness, and  at  the  same  time  manifest  its  friendly  sentiment  towards  the 
Russian  people,  by  granting  freedom  to.  these  victims  of  political  op- 
pression. 

Very  respectfully  yours, 

Name  ,  Address  . 

As  for  the  treatment  of  Kussian  prisoners  found  in  Sak- 
halin, the  following  principles  were  held  in  view: 

1.  All  the  prisoners,  except  political  criminals,  are  to  be  expelled 
as  occasion  requires  to  other  Russian  territories. 

2.  Political  exiles  who  have  a  mind  to  emigrate  to  alien  lands 
are  to  be  accordingly  treated. 

3.  Those  criminals  who  have  become  volunteers  are  to  be  treated 
as  volunteers. 

4.  These  regulations  are  to  be  applied  to  all  criminals  independent 
of  their  nationality,  race,  and  religion. 

(b)     Convicts. 

Concerning  the  treatment  of  convicts  the  Japanese  Gov- 
ernment made  a  special  study  prior  to  her  occupation  of  Sak- 
halin. 


CHAP.  IX.,  SECT.  IV.]      TREATMENT   OF  THE   POPULATION.      237 

Preambulary  Act  of  Sakhalin  Exiles. 
Although  of  Russian  exiles  in  Sakhalin,  those  who  already  had 
become  volunteers  are  of  course  to  be  treated  as  belligerents,  the  rest 
required  special  consideration.  They  divide  themselves  into  three  heads, 
(1)  exiled  peasants,  (2)  exiled  settlers,  (3)  exiled  criminals,  each  of 
which  should  be  separately  studied. 

(1)  Exiled  peasants,  in  round  numbers  6000,  are  freemen  in  all 
but  name,  and  now  that  their  term  of  punishment  has  expired,  they 
have  every  right  to  reside  anywhere,  except  in  the  capital.  They  are 
mostly  good  citizens  and  are  engaged  in  various  sorts  of  business. 
After  the  prison  life  of  ten  years  was  over,  they  had  family  ties  and 
their  fortunes  earned  by  farming,  all  of  which  made  of  them  a  people 
peaceful  enough  to  make  their  residence  in  the  island  desirable. 

(2)  Exiled  settlers,  in  round  numbers  9000,  have  the  right  to 
live  and  to  engage  in  business  of  certain  sorts,  within  the  domain  of 
the  Governor-General  of  Amoor,  since  the  expiration  of  their  terms  of 
punishment.  Most  of  them,  however,  having  been  but  recently  freed 
from  prison  life,  may  be  troublesome  to  the  maintenance  of  good 
order,  because  of  their  indolent  way  of  life;  so  that  it  may  be  prudent 
to  let  them  leave  the  island,  except  those  who  are  found  by  our 
authorities  to  be  of  especially  good  conduct.  Having,  as  above  men- 
tioned, the  right  to  reside  within  the  domain  of  the  Amoor  Governor- 
General,  they  may  be  removed  to  the  coast  districts  without  any 
trouble. 

(3)  Exiled  criminals,  in  round  numbers  7000,  are  criminals  proper 
— some  in  prison  and  some  engaging  in  outdoor  work  under  sur- 
veillance. This  sort  of  prisoners  must  be  looked  upon  in  a  way 
quite  different  from  either  of  the  two  above  mentioned,  for  they  were 
sent  there  specially  escorted,  and  are  by  far  the  most  ferocious  of 
Russian  outlaws.  Hence  the  best  course  we  can  take  with  them  is 
to  follow  the  same  measures  as  the  Russian  Government  practised, 
and  if  confinement  is  not  adequate,  they  may  be  legitimately  driven 
out  of  the  districts  occupied  by  us.  As  for  the  proper  precautions  to 
be  taken  so  as  to  secure  good  citizens  against  possible  apprehension 
arising  from  these  dangerous  prisoners  being  at  large,  the  following 
practical  measures  may  be  suggested:  (1)  to  command  their  with- 
drawal, in  the  same  condition  as  they  have  been,  (2)  to  make  Rus- 
sian police  authorities,  if  any  still  remain,  accompany  these  prisoners, 
(3)  to  use  prisoners  of  war  as  escorts  for  them,  if  the  police  authori- 
ties are  found  ineffectual  for  the  purpose.  These  measures  being  duly 
carried  out,  they  may  be  sent  without  any  apprehension  into  the  coast 
districts. 


238  LAWS   OF  LAND  WARFARE.  [PART  II. 

Moreover,  as  regards  properties  belonging  to  prisoners  turned  out, 
prisoners'  private  possessions  should  be  carefully  discriminated,  by  due 
consideration  of  facts,  from  state  properties  temporarily  used  by  them, 
and  the  former,  either  movable  or  immovable,  disposed  of  according  to 
the  legal  regulations  of  land  combats  and  the  spirit  of  International 
Law. 

In  general  it  was  in  accordance  with  the  provisions  con- 
tained in  this  preambulary  measure  that  the  Japanese  Army 
treated  the  Sakhalin  exiles.  But  to  our  surprise,  when  the 
Japanese  Army  entered  Sakhalin  Island,  the  confusion  was 
taken  advantage  of  by  the  prisoners  in  jail,  some  breaking  jail, 
while  some  others  seemed  to  have  been  released  by  the  Eussian 
authorities.  At  all  events,  the  mixture  of  such  prisoners  among 
the  ordinary  people  was  a  menace  to  general  tranquillity;  and 
every  effort  was  made  to  recapture  them,  but  without  satisfac- 
tory results.  It  is  believed,  however,  that  most  of  them  did  not 
long  remain  in  the  island,  but  went  away  together  with  other 
people.  At  the  time  of  the  occupation  of  the  island,  only  100 
prisoners  were  found  remaining  in  the  prison  at  Luikoff.  They 
were  escorted  to  Alexandrovski,  when  they  were  sent  to  the  Eus- 
sian dominions,  so  as  to  make  Eussia  herself  look  after  her 
own  criminals. 

IV.     Priests. 

The  Sakhalin  Army  had  due  regard  for  Eussian  religious 
convictions  and  their  public  worship,  paid  deep  respect  to 
churches  and  their  accessories,  and  did  not  fail  to  give  ample 
protection  to  priests,  who  were  therefore  naturally  expected  to 
be  at  ease  under  the  protection  of  the  army  and  to  continue 
in  their  sacred  calling.  But  when  they  saw  the  Eussian  civil 
officials  all  about  to  go  away,  they  had  no  courage  to  continue 
their  religious  and  beneficent  work  on  the  island,  but  all,  except 
one  at  Alexandrovski,  started  for  their  home  country,  leaving 
behind  them  their  many  brethren,  especially  those  who  had  for- 
merly been  criminals,  and  who  therefore  should  not  have  been 
allowed  to  go  without  religious  admonition  even  a  day. 

There  being  of  course  no  reason  whatever  to  prevent  their 


CHAP.  IX.,  SECT.  V.]      STATE   AND   PRIVATE   PROPERTIES.        239 

leaving  the  island,  they  were  allowed  to  follow  their  free  will, 
and  were  sent  to  Aomori  by  a  transport,  together  with  the  civil 
officials.  They  were  also  allowed  to  carry  their  luggage  with 
them,  and  given  a  special  certificate  of  protection  for  their 
religious  valuables,  as  requested;  of  which  the  following  is  an 
example : 

"  Alexandrovski,  8th  August,   1905. 

"  The  bearer,  Alexander  Winocroff ,  priest  of  a  Russian  church  at 
Luikoff,  carries  with  him  most  valuable  religious  articles,  such  as  a 
Gospel,  Sacred  Cross,  Antemin,  and  some  such  things;  and  all  persons 
shall  be  prohibited  from  touching  those  articles. 

"  He  also  carries  with  him  his  church  papers  relating  to  births, 
burials,  and  baptisms,  which  shall  not  be  violated  without  authorisation. 

"  Headquarters  Japanese  Sakhalin  Army." 

With  regard  to  the  one  priest  who  remained  at  Alexan- 
drovski, the  Japanese  Army  gave  him  a  certificate  which  per- 
mitted him  to  go  to  and  preach  in  any  village,  so  as  to  enable 
"him  to  freely  administer  religious  and  funeral  services  after 
the  Russian  style. 

Sect.  V.     State  and  Private  Properties  at  Sakhalin. 

Arts.  LII.  and  LIII.  of  The  Hague  Convention  were 
strictly  followed  by  the  Sakhalin  Army  in  imposing  requisi- 
tions or  contributions,  or  in  dealing  with  state  and  private 
properties. 

In  August  of  1905  the  Japanese  Army  published  the  fol- 
lowing Notification  at  Alexandrovski: 

"  Those  inhabitants  of  the  island  who  own  buildings,  such 
as  houses  or  go-downs,  or  transports,  such  as  cars,  sledges, 
horses,  or  cows,  shall  at  once  report  their  ownership  to,  and  get 
its  confirmation  from,  the  Japanese  Military  Administration 
Office. 

"  Those  properties  for  which  such  a  report  shall  not  have 
been  sent  in  by  the  30th  of  this  month  shall  be  regarded  as  the 
state  properties  of  Russia." 

The  object  of  the  Notification  was  to  distinguish  state  prop- 
erties from  private,  so  as  to  be  enabled  to  protect  the  latter 


240  LAWS   OF   LAND   WARFARE.  [PART   II. 

properly,  and  to  know  at  the  same  time  the  basis  of  taxation 
which  was  to  be  imposed  later  on.  For  those  things  which 
were  made  clear,  as  a  result  of  the  Notification  to  be  state 
properties,  the  state  ownership  was  shown  by  nailing  a  tablet 
to  every  one  of  them. 

There  was  another  Notification  published,  it  having  been 
found  necessary  to  exercise  some  kind  of  supervision  to  prevent 
Japanese  merchants  or  Eussian  residents  from  extorting  ex- 
orbitant profits,  by  taking  advantage  of  the  hurry  with  which 
some  inhabitants  of  Sakhalin  were  about  to  depart  for  their 
own  country. 

It  was  as  follows: 

Notification. 

Any  person  desiring  the  transfer  of  property  owned  by  inhabitants 
of  Sakhalin  shall  send  in  an  application  beforehand  to  the  Headquarters 
of  the  Sakhalin  Army  through  the  Military  Administration  Office. 

The  following  Notification  and  Military  Ordinance  were 
also  for  similar  purposes: 

Notification. 
Any  person  desiring  to  secure  a  lien  or  mortgage  on  property  owned 
by  inhabitants  of  Sakhalin   shall  get  a  permit  from  the  Headquarters 
of  the  Sakhalin  Army  through  the  Military  Administration  Office. 

Military  Ordinance  No.  10. 

Any  contract  made  with  a  subject  of  the  occupied  territory  in 
relation  to  houses  or  ground  within  the  island  shall  not  come  in  force 
during  the  time  of  the  occupation,  unless  permitted  by  the  proper  au- 
thorities, except  in  case  of  contract  made  between  the  authorities  and 
the  people  of  the  occupied  territory. 

This  Ordinance  affects  transactions  in  the  past,  and  is  operative 
from  the  date  of  the  landing  of  the  Occupying  Army. 

28th  August,  1905.  Commander  Sakhalin  Army. 

It  must  not  be  omitted  how  the  Japanese  Army  paid  special 
attention  to  the  following  points : 

I.     Forests. 

The  Island  of  Sakhalin  is  extremely  rich  in  large  and  flour- 
ishing forests,  and  it  may  not  be  far-fetched  to  say  that  the 
island  itself  is  nothing  but  a  big  forest,  towns  and  roads  being 


CHAP.  IX.,  SECT.  V.]      STATE   AND   PRIVATE   PROPERTIES.        241 

little  spaces  cut  out  of  the  midst  of  this  thick  growth.  The 
forests  mostly  consist  of  lanceolate-leafed  trees  of  the  pine  fam- 
ily; but  in  places  where  mountain  torrents  pour  down,  spatu- 
late-leafed  trees  can  be  seen  in  their  luxuriant  growth.  But  at 
several  places  there  are  traces  that  clearly  show  the  burning  of 
these  forests,  which  might  have  been  done  either  to  facilitate 
hunting,  or  to  break  up  the  ground,  or  through  mere  careless- 
ness. With  a  view  to  protecting  these  forests,  which  are  very 
important  in  preserving  the  resources  of  the  land,  as  well  as 
to  the  thriving  of  fish,  which  are  a  staple  of  the  island,  the 
Japanese  Army  Headquarters  published  a  Notification  for  the 
Russians,  Japanese,  and  the  people  of  other  nationalities.  The 
notification  was  as  follows : 

All  persons  are  prohibited  from  felling  forest  trees  on  this  Island, 
unless  permitted  by  the  Japanese  Army  Headquarters. 
August,  1905. 

Military  Administration  Office,  Sakhalin. 

II.     Coal  Mines. 

The  northern  half  of  Sakhalin  Island  is  rich  in  coal  beds, 
and  there  were  several  mines  in  actual  use.  According  to 
reliable  Russian  mining  experts,  the  area  from  Dui  to  Mukaji 
via  Alexandrovski  contains  comparatively  numerous  coal  beds, 
which  show  an  abundance  of  the  mineral  in  those  districts.  Of 
the  mines  now  being  worked,  the  two  collieries  at  Mukaji  and 
Dui  were  found,  on  investigation  made  after  the  occupation, 
to  be  private  undertakings  carried  on  by  the  Makowski  Com- 
pany, and  the  Japanese  Army  did  not  fail  to  take  necessary 
steps  to  protect  them.  Some  coal  from  the  Dui  Colliery, 
which  had  previously  been  made  use  of  in  the  name  of  the 
Japanese  Army,  was  properly  paid  for  when  the  north  of  Sak- 
halin was  handed  over  to  Russia. 

According  to  several  books  published  in  Japan  in  relation 
to  Sakhalin,  all  the  coal  mines  in  the  north  of  the  island  were 
described  as  the  Government  undertakings  of  Russia;  but  the 
actual  inquiry  made  by  the  Japanese  Army  immediately  after 
the  occupation  of  the  island  disclosed  that  the  two  collieries 


242  LAWS   OF  LAND   WARFARE.  [PART  II. 

of  Dui  and  Mukaji  were  private  undertakings  of  the  Makowski 
Company.  In  the  meantime  the  manager  of  the  Dui  colliery, 
by  the  name  of  Grunshakoff,  who  lived  then  at  Alexandrovski, 
came  personally  to  the  Headquarters  and  explained  the  facts  of 
the  case.  To  avoid  future  complications,  therefore,  the  Japa- 
nese Army  found  it  necessary  to  preserve  the  collieries  as  they 
then  stood,  and  sent  the  following  letter  to  Horse  Kegimental 
Commander  Ando,  the  highest  officer  of  the  Dui  Occupying 
Army,  under  the  signature  of  Colonel  Kawamura,  Chairman  of 
the  Military  Administration  Committee,  namely: 

Commander  Horse  Regiment,  Dui. 
Sir: 

The  ownership  of  the  colliery  at  Dui  being  as  yet  unsettled,  its 
necessary  tools,  implements,  and  steam  launches,  as  well  as  the  coal 
at  the  pit  mouth,  you  will  kindly  see  your  way  not  only  to  prevent 
from  being  touched,  but  to  give  necessary  protection  to  same. 

Yours  truly, 
(Signed)     Military  Administration  Committee. 

P.  S. — If  the  navy  comes  to  take  coal,  kindly  notify  them  of  the 
contents  of  this  letter. 

After  the  occupation  of  Sakhalin,  it  was  known  that  the 
collieries  were  owned  and  worked  by  the  Makowski  Company, 
and  the  Japanese  Army  did  not  fail  to  give  proper  protection  to 
those  properties. 

III.     Petroleum  Fields. 

With  regard  to  petroleum  fields,  one  of  the  most  important 

resources  of  Sakhalin,  it  was  found  to  be  an  undertaking  to 

be  given  to  individuals  according  to  a  document  presented  to 

the  Headquarters  of  the  Sakhalin  Army  by  a  certain  Pheodor 

Kreiye,  originally  a   German  subject,  but  now  a  naturalised 

Russian,  for  convenience  in  doing  business.    The  document  was 

as  follows: 

Batana,  2nd  May,  1899. 
Pheodor  Kreiye,  Esq., 

Mining  Engineer  and  Retired  Lieutenant  of  Prussia. 
Sir: 

I  hereby  inform  you  that  our  Imperial  Minister  at  St.  Petersburg 
has  taken  the  trouble  in  your  behalf  to  get  the  prospecting  right  on  the 


CHAP.  IX.,  SECT.  V.]      STATE   AND   PRIVATE   PROPERTIES.        243 

two  petroleum  fields  in  Sakhalin  Island,  in  answer  to  the  application 
made  in  your  address  to  His  Majesty  the  Emperor  under  date  the  15th 
of  November.  The  meeting  of  the  Russian  Ministers  decided  to  grant 
to  you  the  mining  business  and  the  petroleum  prospecting  right  in  the 
Maritime  Province  and  the  north  of  Sakhalin  respectively.  The  grant 
was  sanctioned  on  the  23rd  of  November,  and  sent  out  to  the  Gov- 
ernor-General of  Amur,  Maritime  Province,  under  date  of  the  19th  of 
December. 

I  take  this  opportunity  of  expressing  my  hearty  thanks  for  your 
letter  sent  to  me,  dated  the  12th  ult. 

Yours  truly, 

(Signed)     Von  Schibtjrg, 
Imperial  German  Consul-General. 

As  may  be  seen  by  the  above  document,  Kreiye  wanted  to 
carry  on  as  a  private  business  the  extraction  of  petroleum  in 
north  Sakhalin,  and  the  Japanese  Army,  recognising  his  right 
to  it,  decided  not  to  intrench  on  the  business,  although  the 
army  had  nothing  directly  to  do  with  the  matter  during  the 
short  occupation  of  the  north,  the  fields  in  question  lying  far 
away  in  the  vicinity  of  the  Nowhelewksi  harbour  on  the  east 
coast  of  the  island. 

The  Military  Ordinances  promulgated  by  the  Sakhalin 
Army  in  relation  to  mines,  forests,  etc.,  were  as  follows: 

Military  Ordinance  No.  k> 

A  new  license  shall  not  be  granted  for  the  extraction  of  minerals, 
felling  of  forest  trees,  or  hunting  in  this  island,  except  in  case  of  being 
permitted  by  competent  authorities  for  temporary  utilisation.  Those 
who  extract  minerals  (including  petroleum),  fell  forest  trees,  hunt,  or 
occupy  land  without  a  license  shall  be  punished  with  a  fine  not  ex- 
ceeding five  hundred  yen,  and,  according  to  circumstances,  may  be  ban- 
ished from  this  island. 

In  order  to  enforce  the  order  of  banishment,  the  proper  authorities 
are  empowered  to  make  use  of  every  forcible  measure. 

August  28th,  1905.  Headquarters  Sakhalin  Army. 

Military  Ordinance  No.  5. 

Unless  ordered  or  permitted  by  the  authorities,  all  persons  shall 
be  prohibited  from  carrying  out  of  this  island  any  minerals  (including 
petroleum),  forest  productions,  wild  birds  (including  their  eggs),  marine 
animals,  domestic  fowls  (including  their  eggs),  domestic  animals,  or 
hides  that  have  been  produced  in  this  island.     Those  who  violate  this 


244  LAWS   OF  LAND   WARFARE.  [PART   II. 

prohibition  shall  be  punished  with  a  fine  not  exceeding  five  hundred 
yen,  and,  according  to  circumstances,  may  be  banished  from  this  island. 

In  order  to  enforce  the  order  of  banishment,  the  authorities  are 
empowered  to  make  use  of  every  forcible  measure. 

August  28th,  1905.  Headquarters  Sakhalin  Army. 


Sect.  VI.  Application  of  The  Hague  Convention,  Article 
LVI. 

Art.  LVI.  of  The  Hague  First  and  Second  Convention  says : 

Town  property  and  the  property  of  establishments  consecrated  to 
religious  worship,  to  charity  and  education,  and  to  the  arts  and 
property.  All  seizure,  destruction,  or  international  defacement  of  such 
establishments,  of  historical  monuments,  of  works  of  art  or  of  science 
is  prohibited,  and  the  offenders  shall  be  prosecuted. 

And  it  was  in  conformity  with  this  article  that  the  Sak- 
halin Army  protected  various  establishments  as  detailed  below: 

I.     Protection  of  Orphanages. 

The  orphanages  in  Sakhalin  Island  received  ample  protec- 
tion at  the  hands  of  the  Japanese  Army;  and  innocent  children 
amused  themselves  in  the  play-grounds  as  usual,  pursued  their 
study  in  the  school  rooms,  attended  the  church  on  Sundays,  as 
if  they  had  not  known  anything  about  the  war  at  all — as  was  the 
case  at  the  Luikoff  Orphanage. 

Later,  their  superintendent,  expressing  his  desire  to  send 
the  children  back  to  their  home  country,  the  Japanese  Army 
agreed  to  it,  and  sent  them  under  full  protection  and  at  the 
expense  of  the  Japanese  Government  from  Alexandrovski  to 
Aomori,  Japan,  and  thence  to  Yokohama,  where  they  were 
handed  over  to  the  French  Consul.  His  Majesty,  the  Japa- 
nese Emperor,  specially  sent  out  his  military  equerry  to  pay  a 
visit  and  to  give  toys  to  the  orphans.  It  was  therefore  natu- 
ral that  these  Eussian  orphans,  as  well  as  their  superintendent, 
were  deeply  grateful  for  the  kindness  of  both  the  Japanese 
Emperor  and  the  Japanese  Army. 


CHAP.  IX.,  SECT.  VI.]    ART.  LVI.,  THE  HAGUE  CONVENTION.    245 

The  following  was  the  application  sent  in,  requesting  the 
Japanese  Army  to  send  back  those  orphans: 

Alexandrovski,  2nd  August,  1905. 
(Russian  July,  1905.) 
Commander  Japanese  Army  at  Sakhalin. 
Sir: 

I  hereby  beg  to  solicit  you  to  send  to  Japan,  by  the  steamer  leav- 
ing the  day  after  to-morrow,  the  orphans  of  the  Sakhalin  Orphanage, 
established  under  the  protection  of  Her  Majesty  the  Empress  Dowager 
of  Russia,  Maria  Feodrona.  I  also  solicit  you,  if  possible,  to  give  in- 
structions to  the  competent  Japanese  authorities  to  remove  the  orphans 
of  the  Branch  Orphanage  at  Luikoff  to  Alexandrovski,  in  order  to  send 
them  back  together  with  the  above-mentioned  children.  The  orphans 
of  both  orphanages  together  number  74  in  all,  and  there  are  10  attend- 
ants. The  expense  of  food  and  transport  for  both  the  orphans  and 
their  attendants  shall  be  borne  by  the  Russian  Government. 

Yours  truly, 
(Signed)     Von  Bunge,  Acting  Military  Governor. 
(Signed)     Schitzel  Bakoff,  Chief  Secretary. 

II.     Protection  of  Charity  Hospital. 

The  Sakhalin  army,  which  always  placed  much  importance 
on  humanity,  protected  the  patients  of  a  charity  hospital,  and 
continued  to  supply  them  with  food  and  medicine  from  the 
time  of  the  occupation  of  the  Island  till  the  transfer  of  north 
Sakhalin  to  Kussia.  At  the  time  of  this  transfer  of  the  north, 
the  Eussian  Committee  who  saw  the  condition  of  the  patients, 
deeply  appreciated  the  kind  treatment  of  them,  and  declared 
that  they  would  report  the  facts  in  the  case  to  their  Foreign 
Department.  The  following  was  an  application  sent  in  by  the 
Acting  Military  Governor  of  Sakhalin,  von  Bunge,  at  the  time 
of  his  leaving  the  Island: 

Alevandrovski,  3rd  August,  1905. 
Commander  Japanese  Army  at  Sakhalin. 
Sir: 

The  patients  of  the  Maltzuimoff  Charity  Hospital  are  now  at  Onor 
village,  Tsuimoff  province,  but  their  exact  number  cannot  be  known 
until  the  Governor  of  Tsuimoff  province  arrives  at  Alexandrovski.  The 
patients  all  consist  of  aged,  blind,  or  disabled  persons  who  are  unable 
to  look  after  themselves  without  assistance  from  their  attendants.  You 
are  therefore  solicited  to  undertake  the  care  of  them,  and  any  expenses 


246  LAWS  OF  LAND   WARFARE.  [PART  II. 

incurred  thereby  shall  be  defrayed  by  the  Russian  Government,  as  a 
matter  of  course.  In  the  meantime  I  shall  make  an  application  to  my 
Government  for  taking  steps  to  have  these  patients  removed  from  the 
Island  as  soon  as  possible. 

Yours  truly, 

(Signed)      Von  Bunge,  Acting  Military  Governor  of  Sakhalin. 

(Signed)     Schitzel  Bakoff,  Chief  Secretary. 

That  the  people  of  an  occupied  territory,  as  well  as  its  char- 
ities, should.be  protected  in  conformity  with  Arts.  XL VI.  and 
LYI.  respectively  of  The  Hague  Convention  was  well  known 
to  the  Japanese  Army;  and  it  need  not  be  stated  that  the 
Japanese  Army  would  have  treated  the  Charity  Hospital  and 
its  patients  with  humanity  even  without  such  an  application 
as  that  above  quoted. 

III.     The  Nowmihailovskoe  Lunatic  Asylum. 

As  was  above  stated,  all  the  Russian  officials  desired  to  re- 
turn to  their  home  country,  and  even  physicians  requested  to 
leave  the  Island,  either  alone  or  taking  their  patients  along 
with  them.  This  was  also  the  case  with  the  Nowmihailovskoe 
Lunatic  Asylum,  although  it  was  not  an  exception  in  the  mat- 
ter of  humane  protection.  It  was  requested  that  its  patients 
be  sent  under  the  attendance  of  physicians  to  Mcolskoe  on 
the  opposite  coast  by  a  small  sailing  vessel.  The  following  is 
the  application: 

Alexandrovski,  1st  August,  1905. 
Commander  Japanese  Army  at  Sakhalin. 
Sir: 

At  present  there  are  54  lunatic  patients  in  the  lunatic  asylum  at 
Nowmihailovskoe  village,  of  whom  10  are  fully  recovered  and  who  are 
to  be  set  free.  With  regard  to  the  remaining  patients,  it  appears  to 
me  to  be  the  best  plan,  for  the  interests  of  both  the  Japanese  and  Rus- 
sian Governments,  to  send  them  to  Nicolskoe,  in  the  Marine  Province^ 
by  the  private  sailing  vessel  Cameran,  now  lying  in  the  harbour  of 
Alexandrovski.  I  therefore  beg  to  request  you  to  permit  me  to  send 
those  patients  to  Nicolskoe  by  the  above-mentioned  means,  providing 
me  at  the  same  time  with  the  necessary  cars  to  carry  the  properties 
of  the  asylum  from  Nowmihailovskoe  village  to  the  port  of  Alexan- 
drovski, and  also  with  flour  and  salted  meat  necessary  to  support  the 
patients  during  their  journey  to  Nicolskoe.     I   further  solicit  you  to 


CHAP.  IX.,  SECT.  VI.]  ART.  LVI.,  THE  HAGUE  CONVENTION.     247 

make  one  of  your  steamers  tow  the  sailing  vessel  to  the  farthest  prac- 
ticable point,  in  order  both  to  enable  the  patients  to  quickly  reach 
their  destination  and  to  prevent  the  possible  exhaustion  of  provisions 
during  the  long  sailing  voyage. 

For  escorting  the  patients,  I  intend  to  send  with  them  the  local 
government  doctor,  Rudovski,  the  nurse  Antoff,  three  other  nurses,  and 
some  other  attendants. 

The  Government  official  mining  engineer  Kozloff,  who  is  included 
among  the  patients,  became  insane  at  the  time  of  a  battle.  I  hope  it 
will  be  permitted  to  send  him  to  Nicolskoe  in  company  with  the  other 
patients. 

A  reply  from  you  in  relation   to  the  transportation   of  the    above 
patients  you  will  please  address  to  me. 
Yours  truly, 
(Signed)     Von  Bunge,  Acting  Military  Governor. 

The  application  was  agreed  to  by  the  Japanese  Army,  which 
then  gave  a  sailing  permit  and  every  possible  facility  to  the 
patients. 

IV.     Churches. 

With  regard  to  churches,  the  Sakhalin  Army  similarly  gave 
them  ample  protection  in  conformity  with  the  principle  of 
International  Law.  Luikoff  had  a  street  fight  at  the  time  of 
its  occupation;  but  the  big  church  of  the  town  was  so  com- 
pletely protected  that  it  did  not  suffer  the  slightest  damage, 
but  remained  standing,  in  the  centre  of  the  town,  as  if  it  glori- 
fied the  civilised  army  of  Japan.  When  the  envoy  from  Gen- 
eral Lyabnoff  first  came  to  the  Japanese  Army,  he  was  received 
at  this  central  church,  and  it  was  also  at  this  church  that  Gen- 
eral Lyabnoff  and  his  staff  were  received  by  the  Japanese  Army, 
when  they  came  to  surrender,  and  it  is  needless  to  say  how 
deeply  the  civilisation  of  the  Japanese  Army  was  impressed 
upon  them  on  their  actually  seeing  the  splendid  condition  in 
which  the  church  was  preserved  amidst  the  surrounding  tragic 
scene. 

In  Sakhalin  Island  every  town  and  village  had  a  magnifi- 
cent church  in  its  centre,  which  was  used,  it  appears,  as  a  means 
of  uniting  the  minds  of  the  Eussian  emigrants  in  this  island, 
by  inducing  them  to  kneel  before  likenesses  of  the  Czar  and  of 


248  LAWS   OF  LAND   WARFARE.  [PART   II. 

Ikons,  or  sacred  images.  Most  of  these  churches  naturally  be- 
longed to  the  Greek  sect;  but  there  were  also  some  which  be- 
longed to  the  Protestants  and  the  Mahomedans.  To  these 
churches  the  protection  of  the  Japanese  Army  was  equally  ex- 
tended, without  distinction  of  their  sects;  preserving  their 
sanctity  and  preventing  them  from  being  used  for  military 
purposes,  and  as  soon  as  the  Japanese  Army  completed  the 
occupation  of  the  whole  island,  they  were  at  once  allowed  to 
carry  on  their  usual  religious  services.  When  bells  tolled  in 
churches,  therefore,  the  Eussian  people,  men  and  women,  young 
and  old,  were  seen  assembling  in  them,  offering  prayer,  and 
invoking  blessings,  as  peacefully  as  under  ordinary  conditions. 

V.  Schools. 

There  was  one  school  at  Alexandrovski  for  primary  techni- 
cal education.  When  the  town  was  occupied,  the  Japanese 
Army  found  the  school  buildings  left  without  any  occupants, 
the  teachers  having  discontinued  their  profession,  and  the  schol- 
ars dispersed.  The  only  thing  to  be  done  by  the  army  in  con- 
nection with  the  school  was  therefore  to  simply  protect  and 
preserve  the  buildings.  This  was  done,  and  it  was  through  a 
great  exertion  on  the  part  of  the  army  that  they  were  saved 
from  burning  when  the  museum  in  the  neighbourhood  was  de- 
stroyed by  fire. 

VI.  Museums. 

Alexandrovski  had  one  museum.  When  the  Eussians  fled 
from  this  town,  they  left  it  behind  them  without  doing  any- 
thing whatever  with  it,  and  the  building  had  no  other  distin- 
guishing mark  than  a  small  and  old  tablet  attached  to  the 
front  with  the  word  "  Museum  "  written  on  it  in  Eussian  char- 
acters. As  soon  as  the  army  found  it  to  be  a  museum,  soldiers 
were  at  once  despatched  to  protect  it,  and  the  doors  were  shut 
and  nailed,  prohibiting  any  one  from  entering  it,  in  order  to 
prevent  its  contents  from  the  loss  or  injury  likely  to  occur  at 
that  time  of  confusion.  But  it  was  most  regrettable  that  some 
people  set  fire  to  it  one  night,  and  reduced  it  to  ashes.     The 


CHAP.  IX.,  SECT.  VI.]   ART.  LVI.,  THE  HAGUE  CONVENTION.     249 

house  next  door  to  the  museum  on  the  north  was  then  the 
official  residence  of  the  Commander  of  the  Japanese  Sakhalin 
Army,  and  the  one  next  door  on  the  south  was  the  official  resi- 
dence of  the  Chief  Civil  Administrator  of  the  island,  who  was 
at  that  time  away  in  Korsakovski  on  business.  To  make  clear 
the  circumstances,  the  official  report  is  appended: 

Report  on  the  Burning  of  the  Alexandrovski  Museum. 

Yesterday,  the  4th,  at  11.30  p.m.,  a  fire  took  place  at  the  museum 
of  this  town  (the  building  lying  between  my  official  residence  and  that 
of  the  Chief  Administrator).  The  troops  stationed  in  the  neighbour- 
hood were  immediately  sent  to  the  scene  of  the  fire,  and  every  effort 
was  made  to  extinguish  it;  but  it  is  to  be  regretted  that  the  museum 
building  could  not  be  saved  on  account  of  the  scarcity  of  available 
water  in  the  vicinity.  It  was,  however,  fortunate  that,  owing  to  the 
slight  breeze  that  night,  the  fire  was  prevented  from  spreading  to  the 
adjoining  houses. 

As  to  the  men,  horses,  and  materials  of  our  army,  there  was  no 
damage  done. 

Since  our  landing  in  this  island  our  army  had  taken  charge  of 
the  museum,  closed  it  strictly  and  prohibited  any  person  from  enter- 
ing it.  Thus,  there  not  being  anything  in  it  to  have  caused  the  fire, 
it  cannot  but  be  attributed  to  incendiarism  by  Russians;  which  opin- 
ion is  further  strengthened  by  a  report  made  by  the  gendarmes  then 
stationed  at  the  Sakhalin  Civil  Administration  Office.  Strict  search  is 
being  made  for  the  criminals. 

September  5th,  1905.  Commander  of  the  Sakhalin  Army. 

As  may  be  seen  by  the  above  report,  the  burning  of  the 
museum  was  attributed  to  incendiarism,  and  the  •  Headquarters 
of  the  Army  endeavoured  to  find  out  the  criminals  by  publish- 
ing the  following  Notification,  but  in  vain.  The  Notification 
reads : 

Urgent  Notification. 
Last  night  soms  person,  or  persons,  set  fire  to  the  back  of  the 
Museum  lying  between  the  official  residence  of  the  Commander  of  the 
Japanese  Army  and  that  of  the  Chief  Civil  Administration.  Any  per- 
son who  gives  our  authorities  any  information  regarding  the  criminals 
shall  be  given  a  prize  of  fifty  rubles;  and  he  who  captures  them,  a 
prize  of  one  hundred  rubles. 

Alexandkovski,  5th  September,  1905. 
Military  Administration  Office. 


CHAPTER   X. 
THE    OCCUPATION    OF    MANCHURIA. 

Sect.  I.  Principles  and  Regulations  Concerning  the 
Occupation  of  Manchuria. 

Manchuria  was  under  the  sovereignty  of  China,  which  was 
neutral  during  the  Russo-Japanese  War,  and  hence  Manchuria 
was  neutral  territory.  But  before  the  outbreak  of  war,  Man- 
churia was  occupied  by  Russia,  and  was  entirely  under  her  au- 
thority. The  expulsion  of  the  Russian  troops  from  the  three 
provinces  of  Manchuria  was  the  principal  object  of  Japan  in 
beginning  the  war,  which  was  carried  on  de  facto  in  Manchuria. 
Thus  Manchuria  came  to  be  occupied  by  the  Japanese,  who 
drove  out  the  Russian  troops. 

Taking  these  facts  into  consideration,  it  might  be  said  that 
the  occupation  of  Manchuria  was  an  unique  case,  different  from 
what  is  called  military  occupation  of  hostile  territories  in  In- 
ternational Law.  But  the  fact  that  China  recognised  a  por- 
tion of  her  territory  as  the  area  of  fighting  implies  that  her 
consent  to  military  operations  by  belligerents  in  her  own  terri- 
tory was  given.  And  as  a  form  of  military  operation,  the  act  of 
occupation  is  naturally  included  in  this  recognition.  Conse- 
quently the  belligerents  must  be  understood  as  both  being  priv- 
ileged to  take  action  similar  to  those  of  any  common  military 
occupation,  on  account  of  the  needs  of  the  army  as  well  as  of 
the  necessity  of  securing  peace  and  good  order  in  the  occupied 
territory. 

But  as  the  Manchuria  provinces  were  neutral,  not  every 
article  of  The  Hague  Convention  can  be  applied  to  the  occupa- 
tion of  Manchuria.  The  heading  of  Sect.  III.  of  the  Conven- 
tion is  "Military  Authority  in  the  Territory  of  the  Enemy." 

250 


CHAP.  X.,  SECT.  I.]      THE    OCCUPATION   OF   MANCHURIA.  251 

It  is  needless  to  say  that  those  who  drafted  this  Convention 
did  not  conceive  of  such  a  case  as  the  occupation  of  Manchuria. 
But  when  China  is  understood  to  have  consented  to  military 
operations  being  pursued  in  her  territory,  the  occupation  of 
Manchuria  is  understood  as  a  form  of  military  operations,  as 
above  referred  to,  and  it  will  be  seen  at  once  that  such  an  occu- 
pation must  come  under  the  rules  of  International  Law  and 
of  The  Hague  conventions,  and  that  Japan  was  bound  to  ob- 
serve the  whole  of  Sect.  III.,  except  such  articles  as  from  the 
nature  of  the  case  were  inapplicable. 

The  following  articles  of  the  Hague  Convention  can  be  ap- 
plied to  the  occupation  of  Manchuria:  Art.  XLII.  on  the  ele- 
ments and  the  sphere  of  military  occupation,  Art.  XLIII.  on 
the  duty  of  the  occupant  to  respect  the  laws  in  force  in  the 
country,  Art.  XLVI.  concerning  family  honour  and  rights,  the 
lives  of  individuals  and  their  private  property  as  well  as  their 
religious  convictions  and  the  right  of  public  worship,  Art. 
XLVII.  on  prohibiting  pillage,  Art.  XLIX.  on  collecting  the 
taxes,  Art.  L.  on  collective  penalty,  pecuniary  or  otherwise, 
Art.  LI.  on  collecting  contributions,  Art.  LIIL  concerning  prop- 
erties belonging  to  the  state  or  private  individuals  which  may 
be  useful  in  military  operations,  Art.  LIV.  on  railway  mate- 
rial coming  from  neutral  states,  and  Art.  LVI.  on  the  pro- 
tection of  establishments  consecrated  to  religious  worship,  char- 
ity, etc. 

The  articles  inapplicable  to  the  occupation  of  Manchuria  are 
Art.  XLIV.,  "  It  is  forbidden  to  compel  the  population  of  an 
occupied  territory  to  take  part  in  military  operations  against 
their  own  country,"  and  Art.  XLV.,  "It  is  forbidden  to  con- 
strain the  population  of  an  occupied  territory  to  recognise,  by 
the  taking  of  an  oath,  the  power  of  the  enemy."  Now  the  legal 
spirit  of  these  two  articles  is,  that  it  is  illegal  to  force  the 
enemy  to  oppose  their  own  country.  But  as  the  provinces  of 
Manchuria  were  neutral,  these  articles  did  not  need  to  be  ap- 
plied to  the  case  of  the  natives  there.  So  some  Japanese 
scholar   insisted   that   the   Manchurian    Chinese   could   be   em- 


252  LAWS   OF   LAND   WARFARE.  [PART   II. 

ployed  as  guides,  or  spies,  in  the  places  where  they  live,  and 
should  their  national  laws  permit  it,  they  may  be  constrained 
to  recognise,  by  the  taking  of  an  oath,  the  power  of  their 
enemy. 

That  part  of  Art.  LIL,  on  requisitions,  which  says,  "  And 
shall  be  of  such  nature  as  not  to  imply  an  obligation  on  the 
part  of  the  population  to  take  part  in  military  operations 
against  their  own  country,"  is  a  condition  which  for  the  same 
reason  does  not  apply  to  the  subject  of  the  occupation  of  Man- 
churia. 

There  may  be  some  differences  of  opinion  on  the  question 
whether  Art.  LV.  may  be  applied  to  Manchuria,  and  whether 
Japan  may  enjoy  the  usufruct  of  the  immovable  properties  be- 
longing to  the  Chinese  state.  But  this  must  be  understood  as 
justifiable  for  the  same  reason  which  allows  requisitions  and 
contributions  from  the  needs  of  the  army. 

Now  an  effort  will  be  made  to  give  an  account  of  the  under- 
lying policy  of  administration  of  the  occupied  territory  in  Man- 
churia and  the  substance  of  the  results  obtained. 

The  prearrangement  of  the  administration  of  the  occupied 
territory  in  Manchuria. 

I.     Principles  Concerning  the  Administration  of 
Manchuria. 

The  following  is  the  substance  of  what  was  determined  by 
the  Japanese  military  authorities  after  a  thorough  investigation 
of  the  matter. 

Although  it  is  needless  to  say  that  Japan  could  exercise  in 
that  part  of  Manchuria  occupied  by  the  Japanese  Army  all 
forms  of  right  accompanying  the  military  occupation,  as  pre- 
scribed in  International  Law,  the  policy  most  appropriate  for 
her  was  to  exercise  her  power  in  connection  with  the  adminis- 
tration of  the  occupied  territory  in  Manchuria  only  to  the 
extent  of  the  Kussian  precedents.  And  as  the  Manchurian 
provinces  comprise  in  themselves  the  Kussian  lease,  the  Chi- 
nese open  ports  and  the  Chinese  land,  the  modes  of  administra- 


CHAP.  X.,  SECT.  I.]      THE   OCCUPATION   OF  MANCHURIA.  253 

tion  in  these  three  regions  were  necessarily  different  from  one 
another. 

(1)     The  Russian  Lease. 

That  portion  of  the  southern  part  of  the  Liaotung  Penin- 
sula, which  was  leased  by  Eussia,  had  been  hitherto  wholly 
subjected  to  Kussian  control,  and  all  the  machinery  of  legisla- 
tion, administration,  and  jurisdiction  there  was  provided  by 
the  Eussian  Government,  and  the  same  may  be  said  of  Chin- 
chow,  where  the  functions  of  Chinese  local  officials  were  prac- 
tically ignored  by  Eussia.  Administration  of  the  Eussian  lease 
(Chinchow  included)  should  have  been  assumed  entirely  by  the 
Japanese  Government,  partly  because  that  portion  of  territory 
had  remained  hitherto  entirely  in  Eussian  control,  and  partly 
because  her  rights  required  to  be  firmly  planted  there.  The 
same  right,  however,  being  based  merely  on  the  fact  of  occu- 
pation, and  not  authorised  by  any  special  treaty,  any  foreign 
criminal  found  within  the  same  territory  should  have  been 
handed  over  to  his  own  consul  to  be  properly  dealt  with. 

A  military  administration  office  should  be  organised  on  the 
land  leased,  while  the  chief  military  administrator  should  have 
had  entire  control  over  all  the  branches  of  administrative  and 
judicial  affairs,  and  a  diplomatist  or  consul  appointed  as  one  of 
his  staff  should  have  been  charged  with  all  foreign  affairs. 

(2)     Chinese  Trading  Ports. 
Four  Chinese  trading  ports  are  found  in  Manchuria,  that 
is  to  say,  Yingkow,  Datung,  An-tung,  and  Mukden,  the  last 
three  of  which  may  be,  however,  looked  on  as  inland  ports,  for 
they  are  as  yet  scarcely  opened  to  international  traffic. 

In  regard  to  Yingkow,  which  at  present  is  a  Chinese  trading  port  and 
occupies  a  position  quite  different  from  those  of  the  inland,  the  functions 
of  the  Chinese  local  officials  which  had  hitherto  been  entirely  ignored 
by  Russian  authorities,  should  be  respected  as  far  as  they  do  not 
interfere  with  Japan's  military  necessity,  but  at  the  same  time  Japan's 
military  administration  office  organised  there  should  have  attended 
to  everything  relating  to  military  administration. 


254  LAWS  OF  LAND   WARFARE.  [PART  II. 

Matters  connected  with  customs  should  be  managed  by  the 
present  officials,  unless  military  necessity  requires  otherwise. 

One  or  two  places  on  the  chief  military  administrator's  staff 
should  be  filled  by  diplomatists  or  consuls,  who  should  be 
charged  with  all  foreign  and  customs  affairs. 

The  Japanese  Consul  at  Newchwang  should  be  notified  as 
soon  as  Yingkow  was  occupied  by  the  Japanese  force,  and  he 
should  not  only  manage  ordinary  affairs  of  a  consul,  but  attend 
the  conference  of  the  consul's  association,  so  as  to  set  forth 
the  nation's  intentions,  to  keep  watch  on  negotiations  going 
on  between  the  same  association  and  Chinese  local  officials,  and 
further  to  make  the  consuls  of  all  the  Powers  better  acquainted 
with  her  military  administrative  office. 

(3)  Inland  China. 
In  Inland  China,  where  the  function  of  Chinese  local  offi- 
cials had  been  recognised  by  Russia,  these  officials  should  have 
been  left  to  manage  local  affairs,  so  far  as  her  military  neces- 
sity is  not  thereby  obstructed,  while  her  military  administra- 
tion office  organised  there  took  charge  of  affairs  relating  to 
military  necessities. 

II.     Administrative  Regulations  in  Manchuria. 
Based  on  the  principles  of  the  above  preamble,  the  following 
regulations  were  issued: 

Regulations  Governing  the  Administration  of  Liaotung  Garrisons. 
Chapter  I.    General  Principles. 

Art.  I.  A  chief  military  administrator  and  a  certain  number  of 
military  commissioners  shall  be  appointed  for  the  Headquarters  of 
Liaotung  Garrisons. 

Art.  II.  The  function  of  the  chief  military  administrator  shall  be 
an  additional  duty  for  the  chief  of  Liaotung  Garrison  Staff,  and  the 
required  number  of  military  commissioners  shall  be  made  up  partly  of 
higher  civil  officials  and  partly  by  additional  duty  imposed  on  staff 
officers. 

Art.  III.  The  chief  military  administrator,  under  the  direction  of 
the  Commander-in-Chief  of  the  Field,  shall  have  general  control  over 
the  military  administration  within  the  allotted  domain,  and  superin- 
tend the  military  commissioners. 


CHAP.  X.;  SECT.  I.]      THE   OCCUPATION   OF   MANCHURIA.  255 

Art.  IV.  Military  commissioners,  under  the  direction  of  the  chief 
military  administrators,  shall  manage  general  affairs  related  to  mili- 
tary administration. 

Art.  V.  The  domain  of  Liaotung  Garrison  shall  be  divided  as 
follows: 

1.  The  land  leased  by  Russia. 

2.  The  territory  lying  outside  the  land  leased  by  Russia. 

Chapter  II.     Military  Administration  of  the  Territory  of  the 
First  Class. 
Art.  VI.     The  territory  of  the  first  class  shall  be  divided  into  the 
following   three   districts,   for   each  of  which    a    military  commissioner 
shall  be  appointed: 

1.  Port  Arthur  District. 

2.  Dalny  District. 

3.  Chin-chow  District. 

Art.  VII.  A  military  commissioner  shall  exercise  administrative 
measures  necessary  for  promoting  our  military  interests  and  maintain- 
ing good  order  and  the  welfare  of  the  inhabitants  within  his  own 
district. 

Art.  VIII.  A  military  commissioner  may  issue,  under  the  sanction 
of  the  Commander-in-Chief  of  the  Field,  necessary  regulations,  accom- 
panied with  retributory  provisions  for  delinquents  to  the  same,  in  order 
to  execute  his  administrative  function. 

Art.  IX.  A  military  commissioner  may  exercise  judicial  rights  over 
the  inhabitants  of  his  own  district,  either  in  accordance  with  the  local 
law  or  referring  to  our  Imperial  code.  Punishments,  however,  thus  in- 
flicted require  the  sanction  of  the  Commander-in-Chief  of  the  Field. 

Art.  X.  A  military  commissioner  may  decide  civil  cases  lodged  by 
inhabitants  of  his  own  district,  referring  either  to  the  local  legal  prece- 
dents or  to  our  Imperial  code. 

Art.  XI.  A  military  commissioner  shall  superintend  Imperial  sub- 
jects, outside  army,  found  in  his  own  district,  and  criminals,  if  any, 
shall  be  handed  over  to  the  judge  of  the  army,  and  a  criminal  belong- 
ing to  the  army  shall  be  dealt  with  either  by  the  commander  of  the 
regiment  to  which  the  criminal  belongs  or  by  the  judge  of  the  army. 

Art.  XII.  A  military  commissioner  has  the  right  to  impose  taxes 
and  public  requisitions  on  Imperial,  Chinese,  and  foreign  subjects,  dwell- 
ing within  his  own  district,  according  to  articles,  rates,  and  procedure 
of  tax,  prescribed  by  the  Commander-in-Chief  of  the  Field. 

Art.  XIII.  District  No.  3  divides  itself  into  five  wards,  each  of 
which  is  to  be  headed  by  a  wardmaster. 

Art.  XIV.  A  wardmaster,  to  which  function  an  army  officer  or  a 
high  civil  official  is  to  be  appointed,  shall  be  assisted  by  a  certain 
number  of  accessory  officials. 

Art.  XV.  A  wardmaster  shall  execute,  instructed  by  the  military 
commissioner,  the  administrative  affairs  of  his  own  ward;  the  station 


256  LAWS  OF  LAND  WARFARE.  [PART  II. 

and  authority  of  a  wardmaster  shall  be  nominated  by  the  military 
commissioner,  the  chief  military  administrator's  wish  being  consulted. 

Art.  XVI.  The  chief  military  administrator's  opinion  being  appealed 
to,  and  with  reference  to  existing  circumstances  of  the  locality,  a  mili- 
tary commissioner  shall  institute  self-government,  represented  either  by 
a  wardmaster  or  by  a  village  headman,  in  the  wards  of  the  Ching-chow 
district  and  lower  administrative  sections,  into  which  the  other  two 
districts  are  to  be  divided. 

Art.  XVII.  A  military  commissioner  and  a  wardmaster  may  ap- 
point a  certain  number  of  councillors  from  the  Chinese  inhabitants  of 
good  character  and  education. 

Art.  XVIII.  Councillors  shall  give  their  opinion  on  being  consulted 
by  the  military  commissioner  or  wardmaster. 

Councillors  may  be  engaged  in  managing  affairs,  if  prompted  thereto 
by  the  order  of  the  military  commissioner  or  wardmaster. 

Chapter  III.    Military  Administration  of  the  Territory  of  the 
Second  Class. 

Art.  XIX.  In  the  territory  of  the  second  class,  a  military  com- 
missioner may  be  •  stationed,  if  necessary,  wherever  a  Chinese  Govern- 
mental office  is  to  be  found,  or  in  any  other  important  locality. 

Art.  XX.  The  military  commissioner,  appointed  according  to  the 
provision  of  the  preceding  article,  shall  administer  general  military 
affairs  in  the  locality  allotted  to  him,  depending  on  the  Chinese  local 
authorities  for  civil  administration  in  so  far  as  the  same  may  not 
interfere  with  military  necessity.  The  military  commissioner  at  Ying- 
kow,  however,  shall  act  in  conformity  with  regulations  of  the  first 
class  territory. 

Supplementary  Provisions. 

Art.  XXI.  The  above  regulations  shall  be  enforced  from  the  1st 
of  January,  in  the  38th  of  Meiji. 

Art.  XXII*.  The  territory  under  control  of  our  Third  Army  is  ex- 
empted from  the  enforcement  of  the  above  regulations. 

Art.  XXIII.  A  military  commissioner,  with  a  sanction  thereto  of 
the  Commander-in-Chief  of  the  Field,  may  levy  administrative  requisi- 
tions until  the  rates  of  taxes  are  prescribed  according  to  the  provision 
of  the  present  regulations,  Art.  XII. 

The  Chief  of  Staff  sent  a  note  under  date  of  Dec.  23,  1904, 
to  the  military  administrator  of  Ying-kow,  in  which  he  says: 
"  Though  the  extent  of  your  authority  as  military  administra- 
tor is  determined  by  the  Kegulations  for  the  Eegion  of  the  First 
Order,  according  to  the  Eules  of  Administration  by  the  Liao- 
tung   Garrison,  criminals  among  the  Imperial  Japanese   sub- 


CHAP.  X.,  SECT.  II.]      THE   MILITARY  ADMINISTRATION.  257 

jects  outside  of  the  military  as  well  as  Non-combatants  attached 
to  our  army  should  be  transferred  to  the  Imperial  Consul  sta- 
tioned at  Ying-kow,  and  the  cases  of  expulsion  of  those  who 
would  be  injurious  to  peace  and  morals  of  the  district  should 
be  treated  likewise." 

This  Art.  II.  on  the  question  of  judicial  procedure  was  set- 
tled upon  after  careful  discussions  of  different  views  proposed  by 
the  Legal  Investigation  Committee  of  the  Foreign  Office,  and 
those  of  the  officials  despatched  to  Ying-kow  from  the  said 
Office  as  well  as  Dr.  Ariga  and  others  from  the  War  Office. 

Sect.  II.  The  Results  of  Administration  in  the  Occupied 
Territory  of  Manchuria. 

An  account  is  here  given  of  the  substance  of  the  results 
obtained  by  the  administration  whose  ground  policy  has  been 
described  above.  The  account  is  based  upon  the  reports  given 
by  the  Liaotung  Garrison. 

The  administration  of  the  occupied  territory  was  carried  out 
on  different  lines  in  accordance  with  the  instruction  of  the 
Chief  of  the  General  Staff  as  well  as  the  laws  and  usages  of 
war  on  land.  In  the  old  Eussian  lease  of  Port  Arthur,  Dalny 
and  Chin-chow,  the  power,  legislative,  judicial,  as  well  as  execu- 
tive, was  altogether  secured  in  Japanese  hands,  as  it  had 
been  by  the  Eussians  from  their  general  policy  of  administra- 
tion, and  certain  improvements  or  new  arrangements  were 
added  to  their  policy  by  Japan  from  the  more  careful  consid- 
erations of  the  circumstances,  though  only  to  the  extent  of 
Eussian  precedents.  Ying-kow  was  an  open  port  of  free  access 
to  all  nationalities,  where  consuls  of  different  Powers  were  sta- 
tioned. But  since  October,  1900,  the  Eussian  troops  had  occu- 
pied it  and  usurped  its  administration  out  of  the  hands  of  the 
Chinese  Tao-tai.  Judging  from  the  military  importance  of 
the  port,  the  Japanese  Army  succeeded  to  the  Eussian  troops 
in  maintaining  its  military  occupation. 

Outside  the  Eussian  lease  the  Eussian  Army  had  recognised 
official  powers  of  the  Chinese  local  authorities  in  the  three 


258  LAWS   OF  LAND   WARFARE.  [PART  II. 

Manchurian  provinces,  and  the  common  civil  administration 
was  altogether  intrusted  by  Japan  to  these  authorities,  though 
the  regulations  necessitated  from  the  military  point  of  view, 
such  as  those  relative  to  the  public  security  and  the  supply  of 
military  provisions,  etc.,  were  carried  out  either  in  the  name  of 
these  authorities  or  by  their  own  effort  under  Japanese  super- 
intendence. 

Not  only  did  Eussia  get  the  territory  covering  Port  Arthur, 
Dalny,  and  Chin-chow  lease,  where  she  had  built  fortifications, 
railways,  houses,  and  the  other  establishments,  but  also  she 
got  a  lease  for  the  region  of  Liaotung  and  Fu-chow,  where 
she  built  barracks  and  houses,  as  well  as  worked  the  mines. 
But  the  Japanese  Army  strictly  observed  the  laws  and  usages 
of  war  on  land  in  the  territory  they  occupied,  not  failing  to 
take  proper  measures  towards  immovable  properties. 

Having  first  investigated  whether  all  realty  was  owned  by 
the  State  or  by  private  individuals,  they  were  protected  by 
Japan,  and  administered  in  accordance  with  the  principles  of 
usufruct,  except  those  public  properties  which  could  be  seized 
legally  according  to  The  Hague  Convention  relating  to  War 
on  Land. 

Not  the  least  violation  was  committed  upon  those  found  to 
be  private  properties,  except  what  was  demanded  by  requisi- 
tions. 

Especially  those  houses  and  other  properties  owned  by  Eu- 
ropeans which  escaped  damage  by  fire  were  protected  in  the 
most  careful  way.  Not  a  few  of  the  houses  left  by  those 
foreigners  were  strictly  blocked  up  against  any  depredation. 
Moreover,  such  grounds,  houses,  and  establishments  owned  by 
the  Eussian  Government  were  altogether  put  into  the  admin- 
istration of  the  Paymasters  of  the  Liaotung  Garrison,  who 
transferred  such  as  could  be  furnished  for  military  purposes 
into  the  custody  of  the  respective  commanders  of  the  commis- 
sariat, and  transferred  those  not  needed  in  this  capacity  into 
the  custody  of  the  military  administrations.  Individuals  or  cor- 
porations  could  rent   such  buildings,   on   condition   that   they 


CHAP.  X.,  SECT.  II.]      THE   MILITARY  ADMINISTRATION.  259 

should  be  given  up  to  the  army,  if  needed,  upon  reasonable 
notice.  Such  notice  was  agreed  to  be  7  days  to  individuals,  and 
30  days  to  corporations. 

Something  worthy  of  consideration  has  been  done  by  way 
of  the  improvement  of  the  physical  condition  of  the  occupied  ter- 
ritory and  by  way  of  the  protection  given  to  the  Chinese  people 
resident  there.  The  work  of  agriculture  and  that  of  education 
were  the  greatest  among  them.  The  Liaotung  fields  were  gen- 
erally bare  and  barren.  When  it  was  windy,  dust  and  sand 
were  blown  up  and  almost  choked  the  people,  and  in  time  of 
rain,  the  roads  and  fields  were  flooded.  But  they  soon  dried 
up,  leaving  not  even  a  pool  behind,  because  of  utter  absence  of 
standing  trees.  As  a  necessary  step  to  be  taken  in  behalf  of 
the  sanitary  condition  of  the  occupying  troops,  three  million 
saplings  of  pine,  quercus  dentata,  peach,  and  prunus  Japonica 
were  imported  from  home  and  planted  in  Port  Arthur,  Dalny, 
and  Chinchow.  An  excellent  result  was  produced,  with  verdant 
trees  and  green  forests  scattered  over  trie  Manchurian  plains, 
which  was  quite  a  new  feature,  unknown  heretofore  to  the  na- 
tives. The  territory  will  thus  be  saved  from  dust  and  flood, 
and  moreover  be  blessed  with  numerous  springs  of  good  drink- 
ing water. 

When  good  order  was  gradually  restored  in  the  occupied 
territory  and  the  various  arrangements  necessitated  from  a  mil- 
itary point  of  view  began  to  work  satisfactorily,  more  posi- 
tive measures  were  taken  for  instructing  the  people  and  for 
securing  their  lasting  attachment  to  Japan.  The  very  first 
step  taken  in  this  line  was  improvements  given  to  the  schools 
in  different  parts  of  the  territory,  and  where  there  were  no 
such  institutions  already  existing  new  ones  were  opened.  In 
these  schools  simple  and  elementary  lessons  were  given  to  the 
young  and  the  old.  As  many  of  the  Chinese  were  desirous  to 
learn  Japanese,  the  language  was  made  one  of  their  lessons, 
and  was  taught  by  the  Japanese  teachers.  Defrayment  of  their 
expenses  was  left  to  the  discretion  of  the  Chinese  officers  and 
people,  whether  by  contributions  or  by  imposts,  all  the  other 


260  LAWS  OF  LAND  WARFARE.  [PART  II. 

forms  of  executive  responsibilities  being  put  upon  the  military 
administrators.  Shortly  after  their  establishment,  they  received 
a  large  number  of  applications,  which  indicated  good  prospects 
for  the  future. 

Most  of  Japan's  military  administrators  were  those  already 
familiar  with  the  ways,  customs,  and  language  of  the  Chinese 
people,  as  they  had  made  official  tours  through  the  country 
often  before  the  war  broke  out.  They  showed  to  the  people 
their  dignity  at  one  time  and  their  tenderness  at  another  as 
occasions  occurred,  and  the  Chinese  people  were  delighted  with 
the  administration.  Their  continual  applications  for  the  privi- 
lege of  contributing  materials  and  money  for  the  benefit  of  the 
Japanese  Army  of  occupation  proved  more  than  anything  else 
their  good  sentiments  towards  Japan. 

Sect.  III.     Requisitions  and  Booty. 

In  order  to  illustrate  the  above  statement,  it  is  well  to 
dwell  upon  some  of  the  principal  facts  connected  with  the 
Japanese  occupation  of  Manchuria.     ' 

(1)     Requisitions  in  Manchuria. 

Materials  and  service  were  requisitioned  by  Japan  in 
Manchuria  with  military  checks  which  were  announced  in  the 
cities  and  towns  to  be  exchanged  for  silver  coins  on  a  cer- 
tain day. 

This  announcement  was  given  by  both  the  Japanese  Army 
and  the  Chinese  Authorities  in  different  cities,  and  it  settled 
the  confidence  of  Chinese  people.  Later  on  they  asked  no  sil- 
ver coins  in  exchange  for  the  checks,  which  had  as  easy  a  cir- 
culation in  Manchuria  as  convertible  paper. 

While  their  confidence  in  the  checks  was  thus  confirmed, 
requisitions  in  Manchuria  by  the  Japanese  Army  were  per- 
formed in  a  new  and  a  most  fair  method,  that  is,  the  standard 
prices  in  Manchuria  were  settled  as  fairly  as  possible  by  the 
Chinese  Chamber  of  Commerce  by  the  order  of  the  Japanese 
Authorities  and  were  placarded  on  the  walls  of  towns  and  cities, 


CHAP.  X.,  SECT.  III.]      REQUISITIONS  AND   BOOTY.  261 

the  Japanese  Army  making  all  the  requisitions  according  to  the 
rates  announced  therein.  Compared  with  the  method  of  requi- 
sition adopted  in  various  wars  as  the  common  method  in  time 
of  warfare,  by  which  the  belligerents  would  tyrannically  settle 
the  prices  in  general,  irrespective  of  the  economical  condition 
of  the  market,  it  was  by  far  the  most  civilised  step  taken  by  an 
occupying  army. 

(2)     Booty. 

The  Disposition  of  the  First  Army  in  Manchuria  relied 
upon  the  rules  of  International  Law  to  put  a  definition  on 
what  are  called  the  booty  and  disposed  of  that  which  was  cap- 
tured in  battle  according  to  the  "  Eegulations  of  Booty ." 

The  Eegulations  of  Booty  are  as  follows: 

The  Rules   of  Booty    (the   instruction  of  the  Department  of  War). 

Akt.  I.  What  is  called  the  Booty  in  this  rule  are  the  commodi- 
ties captured  by  troops  in  battle  according  to  the  Rules  and  Practice 
of  War. 

An  officer  who  is  called  the  commander  in  this  rule  is  one  who 
directly  serves  the  Emperor  or  Commander-in-Chief. 

Art.  II.  A  commander  is  to  send  the  booty  to  the  Department  of 
War,  except  when  he  receives  the  special  order  of  the  Headquarters. 

The  Minister  of  War  manages  the  affairs  referring  to  the  arrange- 
ment and  disposition  of  the  said  booty. 

Art.  III.  In  spite  of  the  previous  article,  if  there  is  any  necessity 
regarding  military  affairs,  a  commander  can  be  an  arbitrator  in  dis- 
posing of  booty  taken  by  his  soldiers,  either  to  utilise  or  to  destroy  it. 

An  officer  in  command  of  a  certain  dependent  body  can  do  quite 
the  same  as  above  when  he  had  not  enough  time  to  request  the  in- 
struction of  his  superior  (commander)  with  regard  to  the  treatment  of 
the  booty  taken  by  his  men. 

Art.  IV.  When  any  troop  takes  the  booty,  its  commander  must 
wait  for  the  order  of  his  superior,  taking  suitable  means  to  arrange 
for  it  and  to  prevent  its  loss.  But  on  some  conditions  he  can  send 
it  directly  to  his  superior  officer. 

Art.  V.  When  booty  is  taken  it  must  be  reported  to  superiors, 
and  a  commander  must  report  it  to  headquarters.  When  a  commander 
utilises  or  destroys  the  booty,  and  when  it  is  exhausted  or  lost,  the 
treatment  of  it  will  be  quite  the  same  as  above. 

Art.  VI.  Headquarters,  on  the  arrival  of  the  preceding  report,  shall 
communicate  it  to  the  Department  of  War. 

Art.  VII.  When  the  Department  of  War  receives  the  spoils  of  war, 
it  must  be  communicated  to  the  Headquarters. 


262  LAWS   OF  LAND   WARFARE.  [PART   II. 

Art.  VIII.  What  is  called  the  headquarters  in  previous  articles  is 
the  general  staff,  when  the  former  are  not  yet  founded. 

Sect.  IV.     Private  Properties  of  Russian  Inhabitants. 

The  French  Minister  at  Tokyo  requested  protection  for  the 
private  property  of  Russian  merchants  who  were  detained  in 
Port  Arthur  at  the  time  of  its  capitulation  to  the  Japanese 
Army.     The  following  is  the  note: 

Note. 

Les  negociants  de  Port  Arthur,  qui  ont  laisse"  dans  la  ville,  lors 
de  la  capitulation,  de  grandes  quantites  de  marchandises,  invoquent  le 
benefice  de  Particle  46  de  Pannexe  a  la  Convention  de  La  Haye,  d'apres 
lequel  la  proprigte"  privee  doit  §tre  respectee  et  ne  peut  etre  confisques. 
Le  Ministre  de  France  croit  devoir,  a  la  demande  du  Gouvernement 
Russe,  faire  part  au  Gouvernement  Imperial  du  legitime"  desir  des 
interesses  de  ne  pas  voir  leurs  int6rets  personnels  et  leur  fortune  prives 
leses  par  les  suites  de  la  capitulation. 

15  Fevrier,  1905. 

The  Japanese  Government  willingly  accepted  the  request, 
and  declared  that  the  private  properties  of  Russian  subjects 
should  be  protected  according  to  The  Hague  Convention. 

It  is  gratifying  to  know  that  the  author  can  relate  the  fol- 
lowing instances  as  an  evidence  of  the  civilised  actions  of  the 
Japanese  Army: 

The  naval  authorities  had  sent  back  those  bills  of  exchange 
and  some  enclosed  letters  of  the  Russians  to  their  former  pos- 
sessors, which  were  found  in  Chinese  ships  captured  by  the 
Imperial  Navy  when  they  were  trying  to  get  out  from  the 
blockaded  Port  Arthur. 

The  receipt  of  the  French  Minister  to  Japan  is  as  follows: 

Tokyo,  le  10  Octobre,  1904. 
Legation  de  la  Republique  Frangaise  au  Japon. 
Monsieur  le  Baron. 

Votre  Excellence  a  bien  voulu  m'adresser  divers  documents  saisis 
a  Port  Arthur  par  l'autorite"  japonaise  et  dont  un  sujet  russe  dont  le 
nom  et  la  quality  me  restent  inconnus,  embarque"  sur  une  jonque 
chinoise,  etait  d6tenteur. 


CHAP.  X.,  SECT.  V.]      PROTECTION   OF   BUILDINGS.  263 

J'ai  exactement  regu  les  documents  dont  il  sagit  et  dont  voici  la 
nomenclature : 

No.     1.  Cheque  de  100  rubles. 

No.     2.  Cheque  de  500  rubles. 

No.     3.  Cheque  de  1300  rubles. 

No.     4.  3  rubles. 

No.     5.  Cheque  de  300  rubles. 

No.     6.  2  rubles. 

No.     7.  Cheque  de  700  rubles. 

No.     8.  1  ruble  et  une  photo. 

No.     9.  15  rubles. 

No.  10.  9  rubles  60  kopeks. 

No.  11.  Cheque  de  200  rubles. 

No.  12.  1  ruble. 

No.  13.  Cheque  de  1000  rubles. 

No.  14.  Cheque  de  300  rubles. 

No.  15.  30  rubles. 

No.  16.  21  rubles. 

No.  17.  Cheque  de  3000  rubles. 

No.  18.  Cheque  de  200  rubles. 

No.  19.  Cheque  de  1100  rubles. 

No.  20.  2  rubles. 

En  outre: 

6  passports. 

2  certificates. 

J'ai    l'honneur    d'informer    Votre    Excellence    que    je    ferai    ce    qui 

dependra  de  moi  pour  que  ces  documents  soient  lemis  aux  ayants  droit. 

Veuillez  agr€er,  Monsieur  le  Baron,  les  nouvelles  assurances  de  ma 

tres  haute  consideration. 

(Signed)     J.  Harm  and. 

Son  Excellence, 

Monsieur   le  Baron  Komura, 

Ministre  des  Affaires  Etrangeres,  Tokyo. 


Sect.  V.  Protection  of  Historical  and  Religious  Build- 
ings, Hospitals  and  Others. 

Protection  given  to  the  people's  houses,  and  especially  to 
historic  buildings  and  to  religious  institutions. 

The  Japanese  Army  paid  special  attention  to  this  subject, 
as  is  well  illustrated  in  the  following  incident: 


264  LAWS   OF  LAND   WARFARE.  [PART  II. 

Some  soldiers  of  the  Twelfth  Division  one  day  accidentally 
burned  down  three  dwelling  houses.  The  authorities  of  the 
Japanese  Army  considered  the  damage  thus  sustained  as  a 
matter  of  course  to  be  indemnified,  and  paid  a  reasonable 
sum  in  recompense  to  those  who  suffered  from  it.  (Mr. 
Ninagawa,  B.L.,  on  General  Kuroki's  Army  and  International 
Law.) 

Not  only  did  the  Japanese  Army  thus  pay  an  indemnifica- 
tion for  the  houses  burned,  but  also  it  prohibited  trespassing 
on  the  people's  houses,  attaching  importance  to  their  own  right 
of  residence.  Mr.  Ninagawa  has  the  following  passage  in  his 
book  in  reference  to  the  above: 

"  Special  protection  was  given  by  our  army  to  the  Chinese  women. 
Even  when  the  people's  houses  were  requisitioned  for  the  needs  of 
the  army,  the  women's  rooms  were  respected  with  the  prohibition,  '  No 
admittance  to  the  inner  chamber,'  posted  to  warn  the  Japanese  sol- 
diers from  entering  there.  Moreover,  sentinels  were  placed  before  the 
doors  of  such  rooms.  Such  a  painstaking  protection  differed  greatly 
from  the  attitude  of  the  Russian  troops  towards  the  Chinese  and  Korean 
women,  and  it  greatly  attracted  the  heart  of  the  Chinese  people  towards 
our  cause." 

It  is  a  well-known  fact  that  special  care  was  taken  by  the 
Japanese  Army  in  time  of  the  bombardment  of  Mukden  that  the 
sanctity  of  the  city  be  respected.  The  following  is  a  report 
concerning  the  Japanese  attitude: 

A  Peking  despatch  dated  March  14,  1905,  states  that  on  being  in- 
formed by  Mr.  Uchida,  Japanese  Minister  to  China,  that  Marshal 
Oyama,  Commander-in-Chief  of  our  Manchurian  armies,  had  prohibited 
our  troops  from  quartering  within  the  city  walls  of  Mukden  in  view 
of  the  sanctity  of  that  city,  the  Empress  Dowager  expressed  her  high 
appreciation  of  the  good-will  of  Japan.  Marshal  Oyama's  action  has 
created  a  good  impression  on  the  part  of  the  Chinese  Ministers  of 
State  and  the  people  towards  this  country. 

Again  the  Japanese  Army  protected  the  Christian  Churches 
at  Antung-hsien,  Feng-huang-cheng  with  her  gendarmes  placed 
as  guards  over  these  buildings. 


CHAP.  X.,  SECT.  V.]      PROTECTION   OF   BUILDINGS.  265 

The  protection  of  the  hospital  of  the  Countess  Bchouvaloff. 
Dated  April  7,  1905,  the  following  letter  was  sent  by  French 
Minister  to  Baron  Komura: 

Monsieur  le  Baron  : 

Mon  Gouvernement  me  prie  de  demander  les  bons  offices  de  Votre 
Excellence  afin  d'etre  renseigne"  sur  le  sort  de  l'hopital  de  la  comtesse 
Schouvaloff,  qui  6tait  installs  a  Moukden  et  qui  y  est  reste*  apr6s 
l'evacuation  de  la  ville  par  l'armee  russe. 

S.  Ex.  M.  Delcasse"  exprime  le  d6sir  que  dans  le  cas  ou  cet  hopital 
se  trouverait  encore  a  Moukden,  il  soit  renvoye"  a  l'gtat  major  du 
commandant  en  chef  de  l'armee  russe. 

J'ai  l'honneur  de  faire  part  a  Votre  Excellence  de  la  communica- 
tion dont  il  s'agit. 

Veuillez  agreer,  Monsieur  le  Baron,  les  assurances  de  ma  tres  haute 

consideration. 

(Sign§)     J.  Harm  and. 

Son  Excellence, 

Le  Baron  Komura, 

Ministre  d'Affaires  Etrangeres,  etc. 


Thereupon  the  Japanese  Government  referred  to  the  author- 
ities at  Port  Arthur  and  investigated  this  hospital.  Then  the 
following  report  was  sent  in  to  the  Japanese  Military  Minister 
from  Japan's  Army  at  Port  Arthur : 

The  Hospital  of  Countess  Schouvaloff  was  a  part  of  Russian  Red 
Cross  Hospital,  controlled  by  Mr.  Guchukoff,  Chief  Manager  of  the 
Russian  Red  Cross  Society,  and  was  occupied  by  the  Field  Hospital 
of  a  certain  one  of  our  Legions.  Its  staff  numbered  17  in  all,  and 
all  of  them  finding  it  difficult  to  go  back  to  their  outpost,  separated 
from  Guchukoff  and  went  to  Yingkow,  where  they  were  delivered  to 
the  French  Consul  on  the  28th  of  March.  Materials  under  control 
of  Mr.  Guchukoff  were  allowed  to  be  taken  away  with  them,  but  they 
left  some  for  use  in  the  medical  treatment  of  their  sick  and  wounded 
and  also  of  ours. 


This  report  was  sent  by  the  Japanese  Minister  of  War 
to  the  Foreign  Minister,  who  despatched  a  letter  in  the  above 
meaning  to  the  French  Minister  on  the  27th  of  April : 


266  LAWS   OF  LAND   WARFARE.  [PART   II. 

Sect.  VI.  The  Protection  of  Citizens  of  the  Other  Powers 
in  Manchuria. 

A  few  examples  are  here  given  of  the  innumerable  cases  of 
the  protection  and  investigation  given  and  made  respectively 
by  the  Japanese  Government  on  behalf  of  subjects  of  other 
Powers  in  Manchuria. 

(A)     An  example  relating  to  American  citizens. 

The  United  States  Ambassador  to  Tokyo  communicated  as 
follows : 

Legation  of  the  United  States,  Tokyo,  Japan,  May  13,  1904. 
To  His  Excellency  Baron  Komura  Jutaro, 

His  Imperial  Japanese  Majesty's  Minister  for  Foreign  Affairs. 
Monsieur  le  Minister: 

I  have  the  honour  to  submit  to  Your  Excellency,  herewith  enclosed, 
copies  of  exchanged  communications  between  the  Department  of  State 
and  the  American  Trading  Company  of  New  York,  from  which  it  will 
be  seen  that  the  latter  expresses  its  anxiety  as  to  the  safety  of  its  prop- 
erty in  Newchwang,  and  requests  the  former  to  take  such  steps  as  it 
may  deem  advisable  to  insure  protection  and  safeguarding  of  their  in- 
terests and  property,  to  which  the  Department  of  States  replies  "  that 
the  Government  of  the  United  States  has  assurance  from  both  parties 
to  the  present  war  that  the  persons  and  property  of  neutral  American 
citizens  will  be  respected  and,  as  far  as  possible,  safeguarded,  in  the 
event  of  any  such  being  found  within  the  field  of  actual  hostilities, 
and  while  maintaining  an  attitude  of  strict  and  impartial  neutrality, 
it  is  not  in  a  position  to  make  any  demand  which  might  restrict  or 
impair  the  offensive  or  defensive  liberty  of  military  action  by  either  of 
the  belligerents,  especially  at  points  so  situated  as  to  be  or  become  of 
strategic  importance  in  the  course  of  the  general  plan  of  the  campaign.'* 

The  above  reply  clearly  indicates  to  Your  Excellency  the  attitude 
which  the  government  of  the  United  States  is  disposed  to  assume  in 
reliance  upon  the  good  faith  of  the  government  of  Japan,  as  well  as  the 
government  of  Russia,  in  using  all  possible  efforts  to  respect  and  safe- 
guard legitimate  interests  of  American  citizens  in  the  zone  of  operations. 
If  there  is  anything  therein  which  is  not  in  full  accord  with  the  policy 
of  the  government  of  Japan,  or  if  the  confidence  of  my  government  is 
based  upon  a  misconception,  I  would  request  that  Your  Excellency  be 
so  good  as  to  make  it  known  to  me. 

I  take  the  advantage  of  this  occasion  to  renew  to  Your  Excellency 
the  assurances  of  my  highest  consideration. 

(Signed)     Lloyd  C.  Griscom. 

Enclosure  as  above  noted. 


CHAP.  X.,  SECT.  VI.]      PROTECTION   OF   CITIZENS.  267 

American  Trading  Company,  New  York,  April  2nd,  1904. 
Hon.  John  Hay, 

Secretary  of  State,  etc.,  Washington,  D.  C. 
Dear  Sir: 

The  American  Trading  Company  is  a  corporation  duly  organised  and 
existing  under  the  laws  of  the  State  of  Maine,  having  a  principal  office 
at  25  Broad  Street,  in  this  city,  and  has  been  engaged  for  many  years 
in  business  between  this  country  and  various  foreign  countries,  includ- 
ing China  and  Japan.  It  has  an  agency,  which  was  established  many 
years  ago,  at  Newchwang,  in  Manchuria,  where,  in  accordance  with  the 
rights  granted  by  the  treaty  with  China,  it  has  purchased  and  owns 
certain  real  estate,  on  which  its  offices  and  warehouses  are  situated, 
and  it  has  been  continuously  engaged  in  business  there  for  several  years. 

We  enclose  herewith  a  list  of  property  owned  by  us,  in  the  possession 
of  our  agency  at  Newchwang,  at  the  date  of  our  last  report  from 
there,  which,  taken  at  its  fair  value,  amounts  altogether  to  the  sum  of 
$77,800.97;  and  we  respectfully  request  that  your  Department  will  take 
such  steps  as  may  be  proper  to  insure  the  protection  and  safeguarding 
of  our  interests  and  property  at  that  place,  and  to  obtain  for  us  from 
the  proper  government  adequate  indemnity  for  any  loss  or  damage 
thereto  which  may  result  from  the  action  of  the  belligerent  govern- 
ments or  otherwise. 

Yours  respectfully, 

American  Trading  Company, 
James  R.  Morse,  President. 


American  Trading  Company,  New  York,  March  30th,  1904. 
Memo,  of  American  Trading  Company.    Value  of  Property  on  Hand  at 
its  Agency  at  Newchwang. 

Cash  , $3,195.72 

Real  Estate  and  Buildings  20,000.00 

Cargo  boat   (Lighter) 571.78 

Office  Fixtures,  Codes,  etc 1,831.56 

Merchandise:  Piece  Goods 30,969.39 

Cigarettes  2,403.51 

Piping    1,731.75 

Nails 1,040.38 

Wines  and  Liquors    2,040.26 

Coal 1,233.34 

Galvanised  Iron   2,282.80 

Tin  Basins   1,600.92 

Underwear    4,125.03 

Sundries 4,774.53 


$77,800.97 


268  LAWS   OF   LAND   WARFARE.  [PART  II. 

Department  of  State,  Washington,  D.  C,  April  6,  1904. 
The  American  Trading  Company, 

Broad  Exchange  Building,  New  York  City. 
Gentlemen : 

I  have  to  acknowledge  the  receipt  of  your  letter  of  the  2nd  instant, 
expressing  apprehension  of  injury  to  your  property  at  Newchwang,  Man- 
churia, and  asking  this  government  to  take  steps  to  insure  its  protec- 
tion and  obtain  from  the  proper  government  adequate  indemnity  for 
any  loss  or  damage  which  may  result  from  the  action  of  the  belligerent 
governments  or  otherwise. 

In  reply  I  have  to  say  that  the  Government  of  the  United  States 
has  assurance  from  both  the  parties  to  the  present  war  that  the  persons 
and  property  of  neutral  American  citizens  will  be  respected  and,  as  far 
as  possible,  safeguarded  in  the  event  of  any  such  being  found  within 
the  field  of  actual  hostilities.  The  United  States  Government,  main- 
taining the  attitude  of  strict  and  impartial  neutrality,  is  not  in  a  posi- 
tion to  make  any  demand  which  might  restrict  or  impair  the  offensive 
or  defensive  liberty  of  military  action  by  either  of  the  belligerents, 
especially  at  points  so  situated  as  to  be  or  become  of  strategic  impor- 
tance in  the  course  of  the  general  plan  of  the  campaign. 

If  the  interests  of  property  of  innocent  neutrals  should  unfortu- 
nately suffer  through  the  hazards  of  war,  the  remedy  of  the  neutral 
government,  acting  on  behalf  of  its  neutrals,  lies  in  the  presentation  of 
the  injuries  suffered  and  fixation  of  the  responsibility  therefor.  The 
ascertainment  and  adjustment  of  such  matters  is  frequently  a  question 
for  arbitration  in  some  form  by  a  mixed  commission. 

I  am,  gentlemen,  your  obedient  servant, 

(Signed)     John  Hay. 

On  May  20,  1904,  the  Imperial  Government  answered  that 
they  would  respect  and  safeguard  the  persons  and  properties 
of  .  American  citizens  as  far  as  the  liberty  of  military  and 
strategic  importance  in  the  course  of  the  present  war  will 
permit. 

(B)     An  example  relating  to  British  subjects. 

Fear  was  universally  felt  that  the  Chinese  population 
might  become  a  source  of  danger  to  the  lives  and  properties 
of  foreign  subjects  or  citizens  in  Newchwang  and  other  cities 
in  Manchuria. 

On  the  22nd  of  March,  1904,  the  British  minister  at  Tokyo 
requested  that  the  lives  and  properties  of  British  subjects  might 
be  safeguarded  by  such  measures  as  the  circumstances  would 
permit  should  Newchwang  be  occupied  by  Japanese  troops. 


CHAP.  X.,  SECT.  VI.]      PROTECTION   OF   CITIZENS.  269 

To  this  Japan  answered  on  the  30th  of  March  that  the 
lives  and  properties  of  British  subjects  would  be  safeguarded 
as  far  as  possible  at  the  time  of  the  occupation  of  that  part 
of  Manchuria  by  Japanese  troops. 

(C)     An  example  relating  to  Austrian  subjects. 

The  Austria-Hungarian  Consul  at  Tientsin  wrote  to  our 
consul  there,  Ijuin,  the  following  letter: 

Imp.  &  Roy.  Consulate  for  Austria-Hungary. 

Tientsin,  13th  Feb.,  1905. 
Sir  and  Dear  Colleague: 

I  am  informed  by  the  Austro-Hungarian  Vice-Consulate  in  Chefoo 
that  on  the  6th  of  November,  1904,  the  Austrian  subject  J.  J.  Mascha 
entered  the  8th  Russian  Reserve  Field  Hospital  in  Port  Arthur,  suffer- 
ing from  typhoid  fever,  where  he  died  on  or  about  the  6th  December, 
1904. 

When  he  entered  the  hospital  the  following  papers  were  deposited 
at  the  administration  of  the  said  hospital: 

1.  Post-office  Savings  Bank  No.  8473,  showing  a  deposit  of  200 
rubles  paid  in  the  6th  July,  1904. 

2.  Cheque  No.  1944  of  the  Russo-Chinese  Bank,  dated  31st  August, 
1904,  for  230  rubles  in  favour  of  J.  J.  Mascha. 

3.  About  70  rubles  in  cash;  and 

4.  Different  documents  of  the  deceased. 

I  beg  to  request  you  to  be  good  enough  to  communicate  with  the 
proper  authorities  about  this  matter  and  to  secure  the  effects  of  the 
deceased,  and  to  let  me  have  them. 

I  have  the  honour  to  be,  sir  and  dear  colleague, 
Your  obedient  servant, 

(Signed)     K.  Bernaner, 
Austro-Hungarian  Acting  Consul. 
H.  Ijuin,  Esquire, 

Consul-General  for  Japan,  Tientsin. 


After  investigation  the  Imperial  Government  handed  over 
certain  property  of  the  deceased  to  his  family. 

(D)     An  example  relating  to  Italian  subjects. 

The  Italian  correspondence  arose  over  the  disappearance 
of  two  Italian  subjects.  The  Japanese  Government  made 
diligent  though  fruitless  inquiry,  and  had  the  missing  men 
come  under  Japanese  protection,  their  interests  would  have  been 
guarded. 


270  LAWS  OF  LAND  WARFARE.  [PART  II. 

On  the  19th  of  March,  1905,  the  Italian  Minister  at  Tokyo 
wrote  to  the  Japanese  Minister  of  Foreign  Affairs : 

Ra.  Legatione  d'ltalia, 
Tokio. 

Tokio,  le  19  Mars,   1905. 
Monsieur  le  Ministbe: 

Je  viens  de  recevoir  de  Rome  un  tSlegromme  par  lequel  Son  Excel- 
lence le  Ministre  des  Affaires  Etrangeres,  appelant  mon  attention  sur 
un  telegramme  du  Quartier  General  du  General  Oku,  d'apres  lequel 
deux  ne*gociants  italiens  auraient  ete"  tu§s  a  Mukden,  me  charge  de 
m'adresser  au  Gouvernement  Imperial  afin  d'avoir  la  confirmation  de 
la  dite  nouvelle  et  pour  le  prier  de  me  procurer  des  informations  ul- 
terieures  au  sujet. 

En  portant  ce  qui  precede  a  Votre  connaissance,  j'ai  l'honneur 
d'avoir  recours  a  la  courtoisie  habituelle  de  Votre  Excellence  avec  la 
priere  de  vouloir  bien  me  mettre  a  m§me  de  donner  une  reponse  t6l6- 
graphique  a  mon  Gouvernement  a  propos  de  la  confirmation  de  la  sus- 
dite  nouvelle  et  des  informations  qui  m'ont  ete  demandes. 

Des  a  present  j'ai  l'honneur  de  presenter  a  Votre  Excellence  mes 
vifs  remerciments  et  en  meme  temps  je  saisie  cette  occasion  pour  vous 
renouveler,  Monsieur  le  Ministre,  les  assurances  de  ma  plus  haute 
consideration. 

G.  L.  Vinci. 
A  Son  Excellence, 

Monsieur  le  Baron  Komura, 

Ministre  des  Affaires  Etrangeres,  Tokio. 

The  Japanese  Government  immediately  communicated  the 
matter  to  their  military  authorities  in  Manchuria.  As  the  re- 
sult of  this  inquiry,  it  became  known  that  the  Italians  who  were 
said  to  have  died  in  battle  were  ill  treated  by  the  Eussian  army 
and  carried  towards  the  north. 

(E)     An  example  relating  to  the  Hollanders. 

The  Dutch  Minister  to  Japan  sent  to  the  Bureau  for  in- 
formation in  Tokyo  the  following  communication: 

Au  Bureau  de  l'Etat  Major-general, 

Bureau  des  renseignements,  Tokyo. 
Priere  d'obtenir  des  renseignements  sur  les  sceurs  de  charity  Moltzer 
et  Jacobson;  ainsi  que  sur  les  m6decins,  Lieven  et  Riesenkamph,  faisant 


CHAP.  X.,  SECT.  VI.]      PROTECTION   OF   CITIZENS.  271 

tous   parti   de   l'ambulance    Russo-Hollandaise    qui   a   du    se    trouver  a 

Moukden  lors  de  la  recente  bataille. 

Legation  Royale  des  Pays-Bas. 
Tokyo,  le  25  Mars,  1905. 

To  this,  the  Japanese  Government,  after  investigation,  an- 
swered as  follows: 

April  6,  1905. 
To  the  Dutch  Minister  to  Japan. 
Monsieur  le  Minister: 

I  have  the  honour  to  inform  Your  Excellency  that  I  introduced, 
as  soon  as  possible,  to  the  authorities  Your  Excellency's  request,  on 
the  25th  of  the  last  month,  to  be  reported  the  tidings  of  the  Russo- 
Dutch  female  nurses  Moltzer  and  Jacobson,  and  physicians  Lieven  and 
Riesenkamph,  in  service  of  the  hospital  of  war.  The  authorities  replied 
that  our  Imperial  Army  sent  them  to  the  line  of  the  Russian  pickets 
and  handed  them  over  to  the  Russian  Army. 

Minister. 

(F)     Protection  of  the  Chinese  in  Manchuria. 

As  a  result  of  the  Eusso- Japanese  War  the  Chinese  people 
in  Manchuria  and  some  other  places  suffered  greatly  from  cold 
and  hunger.  So  the  Imperial  Government  protected  them  indi- 
vidually. 

Here  are  some  important  facts  about  it: 

a.     The  Relief  of  the  Chinese  People  in  Mukden. 

On  Dec.  17,  1904,  the  Japanese  Charge  d1  Affaires  ad  interim 
in  Peking  reported  that  it  was  impossible  to  describe  the  piti- 
ful condition  of  the  poor  people  in  Mukden,  among  whom  200 
or  300  men  were  dying  of  cold  and  hunger  every  day,  they 
having  no  clothes  to  put  on,  and  that  the  Chinese  Department 
of  Foreign  Affairs  earnestly  requested  him  to  get  the  consent 
of  the  Japanese  Imperial  Government  to  distribute  10,000  of 
48,000  pieces  of  winter  garments  among  the  sufferers  at  Hait- 
cheng  and  Kaiping  by  way  of  Newchwang,  and  to  deliver  the 
rest,  38,000  pieces,  for  the  purpose  of  relieving  those  at  Muk- 
den, to  some  officers  sent  to  Shinming-tung  by  the  head  admin- 
istrator of  Mukden. 

The  Japanese  Imperial  Government  consulted  with  the 
proper  authorities  on  this  request,  and  permitted  the  sufferers 


272  LAWS  OF  LAND   WARFARE.  [PART   IT. 

of  Haitcheng  and  Kaiping  and  their  neighbourhood  to  be  sup- 
plied with  grain  and  clothes  by  way  of  Yinkow.  But  as  the 
Quarters  of  Mukden  were  occupied  by  the  enemy,  the  Japanese 
Government  prohibited  all  transportations  thereto. 

b.  The  Sending  of  Relief  Money  from  the  Chinese  Impe- 

rial Palace  to  the  Mukden  Local  Government. 

As  to  the  sending  of  the  relief  money,  1000  dols.  on  March 
25,  1905,  from  the  Chinese  Imperial  Palace  to  the  poor  people  of 
Mukden,  the  Chinese  Department  of  Foreign  Affairs  requested 
Mr.  Uchida,  the  Japanese  Ambassador  to  China,  to  let  the 
bearer  of  that  money  pass  safely  on  his  way.  The  Imperial 
Japanese  Government  informed  the  Manchurian  Army  to  give 
whatever  orders  necessary  to  accomplish  this. 

c.  The  Permission  for  the  Transportation  of  Salt  to 

Shinming-tung. 

With  regard  to  this,  the  Japanese  Ambassador  Uchida  in- 
formed as  follows: 

"On  the  17th  of  March,  1905,  Yuan-shih-kai  and  Hu- 
chuen-fen,  asked  my  consent  to  the  transportation  of  the  salt  to 
Chin-chow,  Shinming-tung,  and  Fakumen,  annually  sent  there 
for  the  subsistence  of  native  population. 

"  He  thinks  that  there  is  no  danger  of  being  captured  by 
Eussians.  As  it  appears  extremely  necessary  to  the  lives  of  the 
Chinese,  it  might  be  consented  to  the  transport  under  certain 
restriction  and  superintendence." 

The  Japanese  Government  gave  their  consent  for  the  sake 
of  the  Chinese  people. 

d.  The  Case  of  the  Conveyance  of  Provisions  by  Sea 

from  Chef oo  to  Antung-hsien. 

The  despatch  from  Mr.  Mizuno,  the  Japanese  Consul  at 
Chef  oo,  runs  as  follows: 

The  Governor  of  Shantung  telegraphs  to  the  Chefoo  Cus- 
toms that  he  received  a  despatch  from  General  Tseng  to  the 


CHAP.  X.,  SECT.  VI.]      PROTECTION  OF  CITIZENS.  273 

effect  that  the  General  received  petitions  from  Chinese  mer- 
chants at  Antung  saying  that  no  cargo  or  provisions  arrived 
from  Chefoo.  Provisions  running  short  there,  and  that  although 
contraband  of  war  could  not  be  allowed  to  be  exported  from 
Chefoo  for  the  sphere  of  fighting,  yet  provisions  absolutely  neces- 
sary for  subsistence  of  natives  must  be  arranged  to  be  sent. 
Taotai  asked  whether  it  would  be  permissible  to  export  cargoes 
and  provisions  by  junks  from  Chefoo  to  the  Yalu  under  certifi- 
cate of  Commissioner  of  Customs. 

The  Japanese  Government  permitted  this  on  the  condition 
that  the  packet  boat  should  not  call  at  any  port  on  the  way 
from  Chefoo  to  Antung-hsien. 


PART  III. 
LAWS   OF  NAVAL   WARFARE. 


CHAPTER    I. 
THE    SINKING    OF    MERCHANTMEN. 

Now  to  proceed  to  the  chapter  on  the  sinking  of  merchant- 
men. At  the  very  outset,  the  reader's  attention  should  be 
directed  to  the  glaring  fact  that  Russian  warships  were  guilty 
of  sinking  merchantmen,  and  among  their  victims  not  only 
Japanese,  but  neutral  ships  are  to  be  reckoned.  The  author  is 
firmly  convinced  of  the  un justifiability  of  the  conduct  of  the 
Russians,  who  freely  fired  at  ships  or  torpedoed  them,  even  in 
cases  where  these  cruel  measures  were  by  no  means  required. 
Before  the  criticism  is  set  forth,  the  data  on  the  point  in 
question  will  be  in  place. 

By  way  of  general  introduction,  the  full  list  of  merchant- 
men, both  Japanese  and  foreign,  searched,  visited,  captured, 
and  sunk  by  Russian  warships  in  the  neighbouring  seas  of 
Japan  is  here  published.  It  is  based  on  the  results  of  an 
investigation  by  the  Japanese  Department  of  Communica- 
tions : 


LIST   OF   SHIPS   SEARCHED,   VISITED,   CAPTURED,   AND 
BOMBARDED    BY   RUSSIAN    WARSHIPS. 


Nationality. 

Kind  of  Vessels. 

Number. 

Tonnage. 

Total  Number 

Japan. 

Steamships 

Sailing  ships.  . 

16 
16 

26,342 
2,059 

Tonnage. 

Foreign. 

Steamships. . . . 
Sailing  ships .  . 

15 
0 

51,859 
0 

275 


276 


LAWS   OF  NAVAL  WARFARE. 


[PART   III. 


THE  ABOVE 

CLASSIFIED. 

Nationality. 

Kind  of  Vessels. 

Number. 

Tonnage. 

Sunk 

Japan. 

Steamships 

Sailing  ships. . . 

9 
12 

15,590 
1,498 

Foreign. 

Steamships 

Sailing  ships. . . 

6 
0 

18,757 
0 

Captured. 

Japan. 

Steamships 

Sailing  ships.. . 

0 
3 

0 
412 

Foreign. 

Steamships 

Sailing  ships. . . 

3 
0 

11,633 
0 

Bombarded, 

Japan. 

Steamships 

Sailing  ships. . . 

5 
0 

10,367 
0 

but  not  sunk. 

Foreign. 

Steamships 

Sailing  ships. . . 

0 
0 

0 
0 

Searched. 

Japan. 

Steamships 

Sailing  ships. . . 

2 
2 

385 

19 

Foreign. 

Steamships 

Sailing  ships. . . 

0 
0 

0 
0 

Released. 

Japan. 

Steamships 

Sailing  ships. . . 

0 
0 

0 
0 

Foreign. 

Steamships 

Sailing  ships. . . 

6 
0 

21,469 
0 

Recaptured. 

Japan. 

Steamships 

Sailing  ships. . . 

0 
1 

0 
130 

Foreign. 

Steamships 

Sailing  ships. . . 

0 
0 

0 
0 

Whereabouts  unknown. 

Japan. 

Steamships 

Sailing  ships. . . 

0 
2 

0 
333 

Foreign. 

Steamships 

Sailing  ships. . . 

3 

0 

14,927 
0 

The  author  believes  that  besides  the  above  there  were  many 
home  and  foreign  ships  examined,  but  he  relied  upon  the  list 
made  by  the  Department  of  Communications  only. 


CHAP.  I.] 


THE   SINKING   OF  MERCHANTMEN. 


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THE   SINKING   OF   MERCHANTMEN. 


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284  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

Sect.  I.     The  Sinking  of  Japanese  Vessels. 

I.     The  Sinking  of  the  Nakonoura  Maru. 

(The  first  raid  of  the  Vladivostock  Squadron.) 

The  sinking  of  the  Nakonoura  Maru  was  the  first  instance 
of  attack  made  by  the  Vladivostock  Squadron  against  a  Japa- 
nese merchant  ship  or  of  a  third  Power.  Details  of  the  disaster 
are  well  furnished  by  the  following  report: 

Details  of   the   "Nakonoura  Maru  Disaster. 
The  details  of  the  Nakonoura  Maru  disaster,  furnished  by  her  cap- 
tain,  who,   together  with  his    crew,   was    brought   home    on   the   22nd 
inst.,  are  as  follows: 

Caught  and  Fired  on  oy  Russian  Warships. 

The  Nakonoura  Maru  left  Sakata  for  Otaru  on  the  10th  inst.,  at 
10.10  a.m.,  carrying  besides  the  cargo,  four  passengers,  two  men  and  two 
women.  At  6.03  o'clock  the  next  morning,  she  found  herself  five  knots 
off  the  Nyudosaki  lighthouse,  and  at  10  o'clock  reached  a  point  10 
knots  distant  from  Cape  Henashi.  At  about  half-past  eleven  four 
warships  were  descried  some  four  knots  off  the  port  side.  At  that 
time,  a  thick  fog  covered  the  surrounding  sea,  a  strong  southeasterly 
wind  was  blowing,  and  the  waves  ran  high,  so  that  the  newcomers 
could  not  be  identified.  The  nearest  port  of  refuge  left  to  the  choice 
of  the  helpless  steamer  was  12  knots  distant,  which  fact  rendered  void 
all  hope  of  escape  from  the  Russian  warships,  assuming  them  to  be 
such.  All  the  crew  were  gathered  upon  the  upper  deck  and  the  ves- 
sel boldly  took  her  course  onward.  She  thus  drew  nearer  and  nearer 
the  warships  until  at  length  it  became  clear  that  they  were  actually 
Russian.  Abating  her  speed,  the  Nakonoura  Maru  kept  sailing  on, 
when  one  of  the  Muscovite  warships  fired  a  blank  charge.  At  the  same 
time  she  successively  signalled  to  the  Japanese  steamer,  "  Come  paral- 
lel with  us,  we  shall  not  forgive  you";  "  Quickly  abandon  your  ship"; 
"  Leave  your  ship  within  15  minutes."  The  captain  of  the  Nakonoura 
Maru  immediately  ordered  the  boats  to  be  lowered,  at  the  same  time 
signalling  a  request  for  relief  if  such  could  be  rendered.  The  Russian 
vessel,  which  had  then  passed  the  Japanese  steamer,  veered  so  as  to 
face  the  latter  and  signalled  the  reply,  '"  We  are  going  to  rescue  you." 

This  signal  given,  all  the  Russian  warships  opened  fire  on  the 
helpless  steamer  which  they  surrounded.  Boats  were  lowered  from 
the  port  side  of  the  Nakonoura  Maru,  and  the  passengers  and  half  the 
crew  rowed  out  in  them.     But  the  sea  being  very   rough,  the  vessel 


CHAP.  L,  SECT.  I.]      THE   SINKING   OF  JAPANESE   VESSELS.     285 

was  veered  so  as  to  bring  the  starboard  side  to  leeward,  thus  facilitating 
the  lowering  of  boats  from  that  side.  During  this  process,  the  ship 
was  struck  by  several  shells  by  which  Tsuneyemon  Murata  and  an- 
other sailor  were  hit,  and  falling  into  the  sea,  were  drowned.  The 
rest,  far  from  being  able  to  rescue  their  comrades,  barely  succeeded 
in  embarking  in  the  boats.  The  incident  occupying  but  a  moment,  all 
the  ship's  records,  not  to  speak  of  the  personal  effects  of  individuals, 
were  necessarily  lost.  The  boats,  leaving  the  sinking  ship  behind 
them,  were  going  to  make  for  the  shore,  when  the  armoured  cruisers 
Rossia  and  Gromoboi  steamed  forward  and  fired  on  the  little  craft 
from  both  sides.  Flight  being  thus  rendered  impossible,  all  the  boats 
turned  round  and  rowed  up  to  the  Russian  warships,  from  which  ropes 
and  rope  ladders  were  let  down. 

Rescued  Japanese  Aboard  the  Russian  Ships. 

All  the  sailors  and  passengers  were  thus  taken  aboard  the  Russian 
warships,  and  as  the  result  of  an  examination  of  their  personal  be- 
longings, which  followed,  were  all  relieved  of  their  money,  watches,  or 
whatever  valuables  they  had  with  them.  An  hour  later,  the  Nako- 
noura  Maru  foundered  stern  downwards.  The  steamer  Zensho  Maru 
appeared  to  the  crew  of  the  unfortunate  vessel  to  be  placed  in  a  simi- 
lar situation,  but  they  could  not  know  what  had  become  of  her.  As 
to  the  treatment  of  the  rescued  Japanese,  four  passengers  were  given 
one  cabin,  while  the  captain  and  the  crew,  37  in  number,  were  placed  in 
three  separate  cabins.  All  the  cabins  were  locked  and  sentineled,  and 
nobody  was  allowed  out  except  on  unavoidable  occasions.  They  were 
given  brown  bread  to  eat  and  tea  to  drink. 

About  3  o'clock  in  the  afternoon  of  the  same  day,  i.  e.,  the  10th 
inst.,  the  Russian  warships  sailed  away  from  the  scene  of  the  dis- 
aster, first  taking  a  W.N.W.  course  and  afterwards  S.S.W.  The 
squadron  continued  its  cruise  in  the  Sea  of  Japan  till  the  14th  inst. 
at  4  p.m.,  when  it  returned  to  Vladivostock.  The  next  day,  after 
breakfast,  all  the  Japanese  were  given  hats,  overcoats,  and  shoes  and 
then  ordered  to  land  at  10  a.m. 

On  Land. 
On  land  they  were  put,  41  in  all,  into  a  prison-like  room  promis- 
cuously, and  locked  up.  They  were  even  left  without  tiffin  and  were 
made  unbearably  sick  by  the  offensive  odour  that  filled  the  room. 
Unexpectedly,  however,  at  a  little  past  two  in  the  afternoon  an  official 
came  and  summoned  all  the  inmates  and  informed  them  that  they 
would  be  sent  back  to  Nagasaki  by  the  German  steamer  Stolberg  leav- 
ing Vladivostock  at  3  p.m. 


286  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

Departure  for  Home. 

The  steamer,  however,  postponed  her  departure  owing  to  the  dark- 
ness, and  it  was  not  until  the  19th  inst.,  at  10  a.m.,  that  she  left  for 
Japan. 

The  validity  of  the  above  report  may  be  established  by  re- 
ferring to  the  report  sent  to  the  Lighthouse  Bureau  by  the 
master  of  the  Zensho  Maru,  which  was  at  the  scene  and  suc- 
ceeded in  escaping: 

A  Report  of  the  Master  of  the  Zensho  Maru. 

Forwarded  to  the  Bureau  of  Administration  from  Mr.  Kakichi 
Uchida,  President  of  the  Lighthouse  Bureau. 

1.  Appellation:  The  S.  S.  Zensho  Maru. 

2.  Registered  Port:  Fukuyama,  Matsumaye  Gori,  Woshima  Prov- 
ince. 

3.  Owner:  Miyazaki. 

4.  The  date  and  place  of  the  disaster:  E.  Long.  139°  38',  N.  Lat. 
40°  45'  30". 

On  Feb.  10,  1904,  at  11  p.m.,  the  Zensho  Maru  left  Port  Sakata, 
Ugo  Province,  bound  directly  for  Otaru,  laden  with  500  packages  of 
rice,  89  packages  of  miscellaneous  articles,  and  17  passengers.  At  10.40 
the  next  morning,  she  found  herself  about  7  knots  off  Cape  Henashi, 
and  sighted  four  warships  on  her  port  bow.  The  Nakonoura  Maru 
was  then  some  distance  ahead  of  the  Zensho  Maru,  although  they 
started  simultaneously.  At  11.20  a.m.,  the  Nakonoura  Maru  ceased 
moving,  and  the  nationality  of  the  warships  were  fully  discerned. 
Then  the  men-of-war  fired  at  our  ship,  but  the  shot  fell  short  by 
about  40  ken  on  the  port  side,  which  we  took  for  a  signal  ordering  us 
to  stop,  and  ceased  moving.  Shots  were  also  fired  at  the  Nakonoura 
Maru,  which  at  noon,  being  struck  in  the  stern,  sank  in  ten  minutes. 
Then  the  three  Russian  warships  discharged  three  shells,  thrice  going 
around  us.  (Thus  far  they  did  not  deign  to  give  us  any  merchant 
ship  signals,  which  must  throw  grave  responsibility  upon  them.)  A 
little  past  1  p.m.,  taking  advantage  of  a  squall  of  wind  and  rain, 
which  by  2.25  p.m.  brought  a  high  enough  sea  to  cause  the  enemy  to 
miss  us,  we  managed  successfully  to  make  our  escape  under  full  speed. 
On  the  12th,  at  1.55  p.m.,  our  ship  found  herself  duly  at  Hakodate. 

The  master  of  the  Nakonoura  Maru  was  sent  back  on  board 
a  German  steamer,  the  following  being  the  report  concerned : 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     287 

February   22,    1904. 
Minister  for  Foreign  Affairs: 

The  crew  of  the  Nakonoura  Maru,  which  was  sunk  off  Tsugaru, 
with  the  exception  of  two,  came  duly  here  on  board  the  German  S.  S. 
Stalberg,  which  has  just  arrived  from  Vladivostock,  and  are  receiv- 
ing their  sanitary  examination.  In  the  disastrous  incident,  two  of  the 
crew,  by  name  Tsuneyemon  Mochida  and  Sakujiro  Murota,  were  thrown 
overboard  and  drowned. 

Governor   of   Nagasaki   Prefecture. 

II.  The  Sinking  of  the  Goyo  Maru  and  the  Haginoura 
Maru. 

(By  the  second  raid  of  the  Vladivostock  Squadron.) 

The  Vladivostock  Squadron,  which  sunk  the  Kinshu  Maru, 
took  the  same  measure  with  the  Haginoura  Maru  and  Goyo 
Maru,  on  April  25,  1904. 

A.     The  Sinking  of  the  Goyo  Maru. 

The  following  letter  from  a  witness,  an  Englishman,  at  Gen- 
san,  contains  particulars  of  the  sinking  of  the  Goyo  Maru: 

Wonsan,  7  May,  1904. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  despatch 
No.  I.,  dated  the  5th  instant,  requesting  me  to  inform  you  of  such 
facts  as  came  under  my  notice  concerning  the  sinking  of  the  Japanese 
S.  S.  Goyo  Maru  by  Russian  torpedo  boats  in  this  harbour  on  the 
25th  ultimo.     I  beg  to  state  as  follows: 

At  about  11.30  a.m.  (Wonsan  time),  on  the  25th  of  April  last,  I 
observed  two  torpedo  boats  flying  the  Russian  ensign  in  the  harbour. 
Shortly  afterwards  a  boat  put  off  from  one  of  the  torpedo  boats  and 
was  rowed  to  the  Goyo  Maru,  which  was  lying  at  anchor  about  three 
and  a  half  cables'  length  from  the  Customs  jetty.  The  boat's  crew 
boarded  the  steamer,  and  within  a  few  minutes  the  ship's  crew  and 
passengers  jumped  hurriedly  over  the  stern  of  the  vessel  into  a  ship's 
boat  that  was  lying  in  the  water.  All  the  crew  and  passengers  landed 
safely,  being  assisted  by  a  boat  sent  by  the  Customs.  At  about  noon 
the  Russian  boat's  crew  returned  to  the  torpedo  boat,  handed  on  board 
what  seemed  to  be  papers,  and  then  hoisted  their  boat.  About  ten 
minutes  later  (12.10  p.m.)  a  torpedo  was  fired  from  one  of  the  torpedo 
boats,  striking  the  Goyo  Maru,  which  keeled  over  on  her  starboard 
side  and  slowly  sank. 


288  LAWS   OF  NAVAL  WARFARE.  [PART  III. 

The  preceding  I  personally  observed,  partly  with  the  aid  of  a  tele- 
scope. Of  what  happened  on  board  I  have  no  personal  knowledge,  but 
I  conclude  that  little  or  no  time  was  allowed  to  enable  the  passengers 
or  crew  to  save  their  personal  effects,  as  nothing  was  brought  on  shore 
except  a  few  bundles  of  clothing. 

(Signed) 

From  the  above,  the  lawlessness  of  the  Bussian  attitude  in 
this  instance  may  be  easily  imagined. 

A  report  was  sent  in  by  Sin-ko-bo,  Superintendent  Toku- 
gen,  Korea,  concerning  the  same  incident. 

On  April  25,  Russian  torpedo  boats  unexpectedly  appeared  in  the 
harbour  and  fired  at  and  sank  the  Japanese  merchant  ship  Ooyo  Maru, 
as  I  personally  witnessed  from  a  neighbouring  hill.  Informations 
agree  that  the  Russians  resorted  to  cruel  measures  without  any  proper 
inspection  of  the  ship's  freight,  after  having  ordered  the  crew  and 
passengers,  both  Japanese  and  Korean,  to  leave  the  ship. 

B.    The  Sinking  of  the  Haginoura  Maru. 

As  for  the  Haginoura  Maru,  which  left  Joshin  for  Fusan  on 
April  25,  and  whose  fate  became  obscure,  later  facts  proved 
that  she  also  shared  the  same  lot  as  the  Kinshiu  Maru  near 
the  coast  of  the  Kamikiantai,  and  that  her  crew  were  made 
prisoners.  Thereupon  on  the  22nd  of  May,  1904,  our  govern- 
ment made  a  request  through  the  American  Government  for 
their  release,  saying  that  "the  said  ship,  which  had  been  en- 
gaging in  the  coast  trade  of  Korea,  was  of  a  nature  quite  dif- 
ferent from  that  of  the  Kinshiu  Maru,  having  no  relation 
whatever  with  the  Japanese  Government,  so  that  her  crew 
should  be  released,  as  in  the  case  of  the  Nahonoura  Maru." 

As  a  result  of  the  request  made  by  Mr.  Takahira  to  the 
American  Government,  intructions  were  forwarded  to  the 
American  Ambassador  to  Kussia.    The  response  was  as  follows : 

American  Embassy,  St.  Petersburg,  June  23,   1904. 
Your  Excellency: 

In  accordance  with  instructions  received  by  telegraph  from  my 
Government,  at  the  instance  of  the  Japanese  Minister  in  Washington, 
I    transmitted   a   request    to   the   Russian   Government   concerning   the 


€HAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     289 

release  of  the  crew  of  the  merchant  steamer  Haginoura  Maru  and  have 
now  received  a  note  from  the  Imperial  Ministry  for  Foreign  Affairs,  a 
copy  of  which  I  have  the  honour  to  append  herewith. 
I  am,  with  high  regard, 

Your  obedient  servant, 

(Signed)     Robebt  S.  McCobmick. 
His  Excellency  Mr.  Inouye, 

Imperial  Japanese  Minister  at  Berlin,  etc. 

( Enclosure ) 

Ministre  des  Affaires  Etrangeres.     Premier  Department. 

Monsieub  i/Ambassadeub  : 

Ayant  transmis  par  telegraphe  au  Lieutenant  de  sa  Majeste  PEm- 

pereur  en  Extreme  Orient  le  contenue  de  la  note  de  Votre  Excellence 

au    12-25   mai,   Je   ni   empress   de   vous   informer   que   Paide   de   camp 

general  Alexiew  ne  juge  pas  possible,  pour  des  considerations  se  rap- 

portant  a  l'etate  de  guerre,  le  renvoi  au  Japon  des  15  japonaise,  qui 

se  trauvoint  sur  le  vapeur  Haginoura  Maru  par  la  flotte  russe. 

(Signe) 
S.  E.  McCormack, 

Ambassadeur  des  Etates  Unis. 

III.     The  Sinking  of  the  Kinshiu  Maru. 
(By  the  third  raid  of  the  Vladivostock   Squadron.) 

On  April  25,  1904,  the  Vladivostock  Squadron,  on  its  sec- 
ond appearance,  sank  the  Japanese  merchantmen  Haginoura 
Maru  and  Goyo  Maru,  and  besides  the  Kinshiu  Maru,  a  mili- 
tary transport. 

The  report  of  the  Eussian  Admiral  is  as  follows : 

St.  Petersburg,  April  29. — The  details  of  Rear-Admiral  Yeszen's 
raid  show  that  it  was  entirely  successful.  The  Admiral  safely  brought 
back  his  ships  to  Vladivostock  after  inflicting  material  and  moral 
damage  on  the  enemy.  The  cruise  was  most  daring.  The  enemy's 
squadron  was  known  to  be  in  proximity,  which  necessitated  the  prompt 
sinking  of  the  Japanese  transport  Kinshiu  Maru. 

The  ability  of  Admiral  Yeszen  to  reach  Gensan,  300  miles  away,  in 
twenty-two  hours,  as  they  did  on  the  second  expedition,  is  certain  to 
compel  the  Japanese  to  be  on  their  guard. 

The  squadron,  consisting  of  the  armoured  cruisers  Rossia,  Rurik 
and  Gromoboi  and  the  protected  cruiser  Bogatyr,  put  to  sea  at  day- 
break  April   23rd.      The   Rurik   returned    the   following    day,    but   the 


290  LAWS   OF  NAVAL  WARFARE.  [PART  III. 

others  proceeded  to  Gensan,  Korea,  and  hove  to  off  the  town  during 
the  morning  of  April  25th,  about  five  miles  from  the  entrance  of 
the  bay.  Admiral  Yeszen  sent  into  the  bay  two  torpedo  boats,  com- 
manded by  Lieutenant  Maximoff.  As  they  ran  in  towards  the  shore 
they  found  the  Japanese  trading  steamer  Goyo  Maru  at  anchor  with 
a  crew  of  about  twenty  men  on  board.  The  latter  were  ordered  ashore. 
Lieutenant  Maximoff  boarded  the  Goyo  Maru,  took  possession  of  her 
papers  and  flag,  and  then  sent  her  to  the  bottom  with  a  torpedo.  The 
torpedo  boats  forthwith  rejoined  the  squadron,  after  four  hours'  absence. 

The  Russian  Squadron  returned  to  Vladivostock,  and  late  during 
the  night  of  April  26th  started  on  another  expedition.  At  6  o'clock 
on  the  evening  of  April  27th,  when  300  miles  out,  the  squadron  sighted 
a  Japanese  steamer  with  war  stores  on  board.  Her  crew,  consisting 
of  fifteen  Koreans  and  twelve  Japanese,  were  placed  in  safety,  and  the 
steamer  was  sunk  by  a  pyroxylin  cartridge  fired  from  the   Gromoboi. 

The  same  night,  at  about  11  o'clock,  when  the  squadron  was  twelve 
miles  off  Plaksin  bay,  Korea,  a  large  Japanese  transport,  the  Kinshu 
Maru,  was  overhauled.  Her  commander  mistook  the  Russian  for  a 
Japanese  Squadron,  and  signalled,  "  I  am  bringing  you  coal."  The 
Russian    commander    promptly    signalled   in    reply,    "  Stop    instantly." 

The  crew  of  the  transport  then  recognised  their  mistake,  and  began 
to  lower  boats  and  steam  launches  with  the  greatest  haste,  and  en- 
deavoured to  escape,  but  the  Russian  steam  cutters  captured  them  all. 

On  board  the  transport  were  four  Hotchkiss  guns  of  47  millimetres. 
At  the  outset  it  looked  as  if  no  one  was  left  on  board,  but  on  exam- 
ination it  was  found  that  the  cabin  was  locked  and  barred.  Therein 
the  Russians  found  six  infantry  officers,  who  surrendered  without  re- 
sistance and  were  taken  on  board  the  Rurik.  In  another  part  of  the 
ship  130  infantrymen,  who  refused  to  surrender,  were  found. 

Admiral  Yeszen,  whose  vessel  was  about  1600  yards  away,  ordered 
his  men  to  leave  the  transport.  The  Japanese  soldiers  then  opened  fire 
and  wounded  a  Russian.  Afterwards  the  transport  was  sent  to  the 
bottom  by  means  of  a  mechanical  mine  and  a  few  shells. 

The  Japanese  on  board  did  not  cease  firing,  and  made  no  attempt 
to  save  themselves,  although  they  had  a  launch  in  which  they  could 
have  left  the  transport.  The  fire  of  the  Japanese  actually  continued 
until  the  waves  closed  over  the  ship. 

The  transport  had  on  board  not  only  ammunition  but  2000  tons 
of  coal  for  Admiral  Makamura   (  ?  Kamimura). 

The  prisoners  numbered  183,  including  seventeen  officers.  Alto- 
gether 210  prisoners  were  taken  by  the  Russian  squadron,  landed  at 
Vladivostock,  and  immediately  despatched  by  train  to  Nikolsk. 

It  was  reported  at  the  time  the  Russian  cruisers  were  returning: 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     291 

to  Vladivostock  that  a  Japanese  fleet  of  ten  vessels  was  also  making 
for  that  port,  but  it  failed  to  reach  Vladivostock,  owing  to  the  fog. 
A  wireless  telegraph  message  was  picked  up  by  the  Russian  ships 
while  at  sea.  It  was  in  code  and  unintelligible,  but  was  evidently 
passed  between  the  Japanese  ships. 

Among  the  Japanese  prisoners  are  a  Colonel  and  an  officer  of  the 
general  staff,  while  the  soldiers  include  a  number  of  Japanese  who 
before  the  war  worked  as  artisans  at  Vladivostock. 

The  following  article  contains  full  details  of  the  disastrous 
incident : 

Story  of  One  of  the  Refugees. 
Nine  of  the  Kinshu  Maru  refugees,  including  Mr.  C.  Ichimaru,  pro- 
prietor, and  Mr.  K.  Hiramatsu,  manager  of  the  Ichimaru  Company, 
Sasebo,  an  employee  of  the  Sasebo  Kyosan  Company,  and  six  labourers, 
arrived  at  Sasebo  from  Gensan  on  the  6th  inst.  One  of  the  men  gives 
full  details  of  the  disaster  to  the  Kinshu  Maru,  as  follows: 

Before  the  Disaster. 
The  Kinshu  Maru  left  Sasebo  at  4  p.m.  on  the  12th  ult.,  and  sub- 
sequently reached  Hai-ju  bay,  where,  after  three  days  stay,  she  was 
joined  by  a  squadron  which  had  participated  in  the  seventh  and  eighth 
bombardment  of  Port  Arthur.  The  Kinshu  Maru  then  followed  the 
squadron  to  Gensan,  which  was  reached  on  the  23rd.  All  the  vessels 
of  the  squadron,  except  a  number  of  torpedo  boats,  proceeded  north 
on  the  24th,  while  the  Kinshu  Maru,  escorted  by  the  remaining  torpedo 
craft,  left  Gensan  for  I-won,  Han-gyong-do,  at  6  a.m.  on  the  25th. 
There  were  on  board  the  Kinshu  Maru,  besides  the  crew  of  70,  the 
Ninth  Company  of  the  37th  Regiment,  a  number  of  naval  officers  and 
men,  10  sutlers  and  77  labourers.  The  military  troops  had  embarked 
the  preceding  day.  On* arrival  at  their  destination,  the  troops  landed 
for  reconnoitring  purposes  and  returned  about  5  p.m.  The  Kinshu 
Maru  started  on  her  return  journey  about  7  p.m.,  but  the  torpedo 
boats,  which  had  convoyed  her  to  I-won,  had  left  half  an  hour  before. 
Shortly  afterwards  all  was  quiet  on  board  the  Kinshu  Maru,  the  ma- 
jority of  the  men  having  gone  to  bed. 

Encounters  the  Russian  Warships. 
About  10  p.m.  we  were  awakened  by  a  Mr.  Fujii,  an  employee  of 
Mr.  Yamada,  a  tailor  in  Tokyo,  who  informed  us  that  we  had  been 
overtaken  by  Russian  warships.  At  first  we  gave  no  heed  to  his  re- 
marks, but  were  surprised,  on  going  to  the  upper  deck,  at  finding 
the  Russian  armoured  cruiser  Rossia  throwing  her  searchlights  on  our 


292  LAWS   OF  NAVAL   WARFARE.  [PART  III. 

vessel  from  a  distance  of  40  or  50  yards.  Meanwhile  Captain  Yagi 
was  heard  conversing  in  English  from  the  conning  tower  with  a  Rus- 
sian officer,  who  was  similarly  posted  in  his  vessel.  We  could  not 
understand  them,  but  heard  the  words  Kinshu  Maru.  We  at  once  went 
below  in  order  to  awaken  the  rest  of  the  men,  and  when  we  reappeared 
on  deck,  Lieutenant-Commander  Mizoguchi,  superintending  naval  offi- 
cer, ordered  the  boats  to  be  lowered  as,  he  said,  an  hour's  grace  had  been 
given  the  vessel.  Shortly  afterwards,  Lieut.-Commander  Mizoguchi, 
Captain  Yagi,  Paymaster-Lieutenant  Iida,  Interpreter  Kondo,  a  few 
bluejackets,  and  many  others  proceeded  to  the  Rossia  in  boats.  We, 
however,  remained  on  the  vessel,  still  hoping  to  escape.  We  went 
below,  where  I  equipped  myself  with  a  life-buoy  and  put  as  many 
clothes  on  as  possible  in  order  to  save  myself,  in  the  event  of  im- 
mersion, from  freezing  in  the  water.  Some  time  past  midnight,  all 
was  noiseless  and  when  we  again  went  up,  no  one  was  found  there. 
Going  to  the  stern,  however,  we  found  a  sentinel  standing  in  front  of 
an  officer's  cabin,  who  said  that  the  military  troops  on  board  were 
all  determined  to  share  the  fate  of  the  Kinshu  Maru,  and  that  they 
were  very  quietly  remaining  below  deck.  At  1.30  a.m.  the  enemy 
discharged  a  torpedo,  and  also  used  a  quantity  of  explosive  to  blow 
up  the  ship.  The  torpedo  pierced  the  hold.  About  2  a.m.  the  enemy 
torpedoed  the  Kinshu  Maru  for  the  second  time,  with  the  result  that 
she  was  cut  in  two  at  the  engine-room  and  sank.  All  the  troops  were 
whirled  into  the  water,  while  some  of  them  endeavoured  to  shoot  ene- 
mies at  the  last  moment  of  their  lives. 

IV.     The  Okinoshima  Disaster. 

The  Sinking  of  the  Hitachi  Maru  and  the  bombardment  of 
the  8 ado  Maru. 

(By  the  third  raid  of  the  Vladivostock  Squadron.) 

On  June  15,  1904,  the  Vladivostock  Squadron  made  its  3rd 
appearance,  sank  the  Hitachi  Maru  and  fired  at  the  Sado 
Maru,  near  Okinoshima. 

Besides,  a  number  of  other  ships  fell  victims  to  that  Rus- 
sian attack — the  Japanese  sailing  ships  Izumi  Maru,  Ansei 
Maru,  Hachiman  Maru,  Seiyei  Maru,  Koun  Maru,  Seisho 
Maru,  as  well  as  the  British  S.  S.  Allanton  and  Cheltenham. 
(The  Allanton  case  is  dealt  with  in  another  place.) 

Reliable  reports  bearing  on  the  Hitachi  Maru  and  Sado 
Maru  are  inserted  on  next  page. 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     293 

Official    Reports} 
The   following  are  the  more   important   of  the  reports   received   at 
the  Imperial  Headquarters   regarding  the  Russian  Squadron  that   ap- 
peared in  the  neighbourhood  of  Okinoshima: 

I. 

Okinoshima,  June  17,  1  a.m. 
At  6  a.m.  on  the  15th  the  three  Russian  ships,  the  Rossia,  Gromoooi 
and  Rurik,  were  seen  sailing  in  the  easterly  roadstead  from  the  north, 
but  at  7.55  they  separated  at  about  8  miles  southwest  of  this  place. 
One  of  them  proceeded  towards  Okinoshima,  the  other  two  going  in 
the  direction  of  Wakamiya  Island  (Oki).  At  8.20  the  latter  two 
were  lost  in  the  fog,  but  the  former  commenced  firing  at  8.22.  The 
object  of  their  firing  was  not  known  at  the  time,  but  at  10.30  a 
steamer  was  sighted  sailing  to  the  eastward  about  13  miles  in  a  south- 
erly direction.  It  is  therefore  presumed  that  the  Russians  were  firing 
at  that  steamer,  which  was  seen  to  change  its  course  southward  at 
10.45.  At  12  both  the  war  vessels  and  the  steamer  were  lost  in  the 
fog,  but  the  booming  of  guns  did  not  cease.  The  steamer  seems  to 
have  been  pursued  until  12.40  p.m.  Fifty-three  survivors  from  the 
unfortunate  Sado  Maru  reached  here  last  night,  and  others  are  con- 
tinually arriving. 

II. 

From  Admiral  Tsunoda,  Takeshiki  Station,  June  17,  7.53  a.m. 

The  15th  torpedo-boat  flotilla  returned  here  to-day  at  12.30  a.m., 
having  in  tow  several  boats  containing  First  Accountant  S.  Imazawa, 
Third  Accountant  Y.  Nishihama  and  77  others.  Immediately  after 
the  news  was  received,  at  1.20  p.m.  yesterday,  that  reports  of  guns 
had  been  heard  in  an  easterly  direction,  the  flotilla  was  despatched 
towards  Okinoshima,  where  it  arrived  at  4.30  p.m.  and  picked  up  the 
above  survivors. 

According  to  the  statement  of  First  Accountant  Imazawa,  of  the 
Sado  Maru,  the  latter  left  Bakan  at  dawn  on  the  15th  inst.,  proceeding 
towards  the  south  of  Okinoshima  and  was  about  to  overtake  the 
Hitachi  Maru,  when  one  of  the  enemy's  warships  was  sighted  through 
the  rain. 

The  Hitachi  Maru  turned  back,  as  did  the  Sado  Maru,  but  the 
two  vessels  were  quickly  fired  upon  by  the  enemy's  warships,  Rossia 
and  Gromoooi.  After  the  Hitachi  Maru  had  received  some  50  or  60 
shots,  a  large  volume  of  white  smoke  was  seen  rising  from  the  ves- 
sel, presumably  fire  having  broken  out. 

>  Japan  Times,  May  18,  1904. 


294  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

The  Sado  Maru  received  more  than  ten  shots  at  close  range,  but 
she  stopped  as  the  enemy  suspended  firing.  The  naval  superintendent 
of  the  transport  went  to  the  enemy's  warship  to  negotiate,  and  after 
securing  40  minutes'  grace  ordered  all  persons  to  leave  the  vessel. 
Non-combatants  were  forwarded  to  the  enemy's  ships,  relying  upon 
his  consent  to  take  them  on  board,  but  the  enemy  refused  to  receive 
them,  except  the  first  officer  (an  Englishman).  The  enemy,  more- 
over, before  the  expiration  of  the  allotted  time,  discharged  torpedoes 
from  both  sides,  which  struck  the  transport  and  exploded,  whereupon 
all  on  board  jumped  into  the  sea,  most  of  them  being  drowned.  Only 
80  persons,  as  mentioned  above,  took  to  the  boats  belonging  to  the 
transport,  and  drifting  on  the  waves  fortunately  reached  the  island 
about  7  p.m.,  when  the  15th  flotilla  took  them  on  board  and  returned 
here.  These  survivors  were  transferred  to  the  Nanyetsu  Maru  on  the 
way  and  will  be  sent  back  at  the  first  opportunity. 

III. 
The  Headquarters  of  the  12th  Division,  Kokura,  June  16. 
Two  military  transports,  the  Sado  Maru  and  Hitachi  Maru,  met 
the  enemy's  fleet,  consisting  of  three  warships,  at  a  point  about  40 
miles  off  Moji,  on  the  15th  inst.  at  11  a.m.  The  enemy  attacked  the 
transports,  with  the  result  that  the  Hitachi  Maru  was  sunk,  while 
the  Sado  Maru  was  torpedoed  at  her  engines.  The  enemy  then  steamed 
towards  the  north. 

IV. 
From  Captain  Yoshizawa,  Moji,  June  17. 
The  Ise  Maru  has  just  arrived  with  the  survivors  of  the  Sado  Maru 
on  board.     The  Sado  Maru  escaped  sinking.     Assistance  is  now  being 
rendered  by  the  Hino  Maru. 

V. 

From  Colonel  Tamura,  I.E.,  Moji,  June  17. 
At  6.30  a.m.  on  the  15th  inst.,  the  Sado  Maru  passed  the  Strait 
of  Bakan,  and  was  proceeding  parallel  with  the  Hitachi  Maru,  when 
at  6.50  a.m.  she  was  fired  on  by  three  Russian  warships  and  subse- 
quently surrounded  by  them.  We  then  stopped  the  ship  and  trans- 
ferred the  majority  of  the  non-combatants  to  the  boats.  At  about 
that  time  the  steamer  was  shelled  and  torpedoed  by  one  of  the  ships, 
apparently  the  Rossia,  and  great  damage  was  sustained  by  the  engines. 
Just  then,  the  Hitachi  Maru  was  heavily  fired  upon  by  two  Russian 
ships  and  sunk,  having  been  set  on  fire.  Water  rushed  in  through  the 
damaged  side  of  the  Sado  Maru,  whereupon  the  officers  and  men  on 
board  gave   three  Banzail    for  the   Emperor,   and  were   preparing   for 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     295 

the  last  moment  either  by  sword  or  revolver,  when  one  of  the  Rus- 
sian ships  torpedoed  the  steamer  a  second  time.  This  torpedo  struck 
the  steamer  at  the  engines.  The  Russian  ship  then  hurriedly  retreated 
to  the  north,  on  perceiving  which  all  idea  on  the  part  of  the  men  of 
taking  their  own  lives  was  abandoned,  and  they  worked  hard  Con- 
structing rafts  and  preventing  the  water  from  flooding  in.  The 
steamer  was  adrift,  struggling  against  the  bad  weather,  for  more  than 
thirty  hours.  At  1  p.m.  on  the  16th,  she  met  a  sailing  boat,  to  which 
all  on  board  were  transferred.  Afterwards  while  proceeding  to  Bakan, 
we  were  hailed  by  the  two  rescue  boats,  the  Ise  Maru  and  Hino  Maru, 
which  took  all  of  us  on  board  and  rached  Moji  at  noon  to-day. 

The  superintending  officer,  Commander  Ogura,  who  went  to  one 
of  the  Russian  ships,  was  carried  away.  Accountants  Imagawa  and 
Nishihama,  Surgeon  Miyazawa,  railway  officials  Kobayashi,  Yano  and 
Nakamura,  Engineers  Kojiro,  Sakai  and  Murata,  and  some  subordinate 
officials  and  others  (including  crew),  about  600  in  all,  had  quitted 
the  steamer  before,   and  their  fate  is  unknown. 

V.     The  Sinking  of  the  Seisho  Maru  and  the  Koun  Maru. 
(By  the  third  raid  of  the  Vladivostock  Squadron.) 

On  June  30,  the  Vladivostock  Squadron  once  more  swooped 
down  upon  Gensan  and  there  sank  Japanese  ships.  The  fol- 
lowing was  sent  in  concerning  the  disaster: 

June  30,  1904. 

On  June  30,  at  6  a.m.,  six  Russian  torpedo  boats  entered  Gensan, 
where  they  fired  about  200  shots  upon  the  settlement  and  sank  one 
steam  launch  and  one  sailing  vessel.  Then  rejoining  three  ships  out- 
side the  harbour,  they  disappeared.  In  the  incident,  two  Koreans  and 
two  soldiers  were  slightly  wounded,  and  buildings  were  slightly 
damaged. 

On  July  2nd  the  following  fact  was  known:  Thirty-five 
buildings  in  the  settlement  were  shot  at,  and  the  Seisho  Maru, 
owned  by  Kishitaro  Hamane  at  Hakodate,  which  was  laden 
with  rice,  rope,  matting,  table  salt,  fishing  boats,  fishing  tools, 
etc.,  was  sunk. 

The  Eussian  report  concerning  the  incident  was  as  follows: 

A  Reuter's  telegram,  bearing  the  date  of  July  8th,  1904,  says  that 
Admiral  Skrydloff  on  July  5th  telegraphed  the  Czar  to  the  effect  that 
a    torpedo    flotilla    and    the    transport    Lena    were    sent    to    Gensan 


296  LAWS   OF  NAVAL  WARFARE.  [PART   IIL, 

to  reconnoitre  under  the  command  of  Capt.  Baron  Rahden.  No 
men-of-war  were  met  with,  but  a  coasting  steamer  and  a  schooner  were 
found  and  burned  after  the  crews  had  landed.  A  large  number  of 
barges  lying  along  the  shore  were  also  destroyed.  In  the  Japanese 
settlement  and  on  the  hill,  Japanese  soldiers  were  seen  hastily  as- 
sembling, and  they  commenced  firing  on  the  Russian  torpedo  boats, 
which  replied,  compelling  them  to  retire.  The  torpedo  boats  set  fire 
to  the  barracks  by  firing  grenades.     No  loss  on  our  side. 

British  steamer  Cheltenham,  which  was  seized  by  our  cruisers  in 
the  Sea  of  Japan,  arrived  July  5th  in  Vladivostock.  She  was  bound 
from  Otaru  to  Fusan  with  railway  sleepers  and  construction  timber 
for  the  railway  between  Soul  and  Fusan. 

Later  on,  the  following  report,  containing  much  fuller  par- 
ticulars, was  sent: 

July  21,  1904. 

On  June  30,  at  5  a.m.,  four  Russian  torpedo  boats  suddenly  came 
in.  Soon  after  three  more  were  added,  and  three  large  men-of-war 
and  one  transport  were  seen  lying  in  the  offing.  The  enemy's  flotilla 
was  already  approaching  the  jetty,  and  bluejackets  of  one  boat  were 
about  to  land,  when  a  warning  was  given  to  the  settlers  to  take  im- 
mediate refuge  in  a  certain  place.  At  this  crisis,  the  alarm  trumpet 
of  our  soldiers  stationed  here  being  heard,  the  enemy  kept  off  the 
landing  and .  retreated,  signalling  to  the  rest  of  flotilla.  While  re- 
treating, they  fired  at  our  steam  launch  Koun  Maru,  and  sank  the 
Seisho  Maru.  Then  they  began  to  fire  at  our  settlement,  first  at  the 
people's  houses  along  the  eastern  coast,  then  gradually  towards  the 
northwest,  piercing  through  the  roof  of  the  building  No.  6  annexed 
to  our  Consulate,  sending  shells  in  front  of  the  Chinese  Settlement 
from  over  the  hill  behind  the  Consulate.  The  firing  lasted  for  about 
45  minutes ;   shots  numbered  about  200  altogether. 

Thirty-five  houses  sustained  damage,  some  of  which  received  six 
or  seven  shells  each.  Six  private  houses  and  the  kitchen  in  the  site 
of  the  old  barracks  were  damaged  beyond  repair  by  numberless  shells, 
which  seem  to  have  been  purposely  directed   there. 

VI.  The  Sinking  of  the  Jizai  Maru,  Fukuju  Maru,  Taka- 
shima  Maru,  Kaho  Maru,  and  Holcusei  Maru  No.  2. 

(By  the  fourth  raid  of  the  Vladivostock  Squadron.) 

Eegarding  the  Japanese  sailing  ships  sunk  by  the  Vladivos- 
tock Squadron  in  its  fourth  appearance,  the  following  typical 
information  will  suffice: 


CHAP.  I.,  SECT.  I.]      THE   SINKING  OF  JAPANESE  VESSELS.     297 

The  crew  of  the  ill-fated  sailing  vessel  Jizai  Maru,  which  was  re- 
cently sunk  by  the  Vladivostock  squadron  off  the  southern  coast  of 
Japan,  returned  to  Tokushima  prefecture,  their  native  place,  on  the 
16th  inst.  from  Vladivostock  via  Muroran.  Referring  to  the  sinking 
of  their  vessel,  they  state  that  whilst  off  Omai-zaki,  Enshu,  at  about 
2  p.m.  on  July  24  they  sighted  three  Russian  warships  of  the  Vladivos- 
tock squadron,  the  foremost  of  which  signalled  to  the  vessel  to  stop. 
After  firing  a  few  blank  shots,  a  boat  manned  by  27  bluejackets,  in- 
cluding an  officer,  came  alongside  the  Jizai  Maru  and  boarded  her. 
They  at  once  searched  the  vessel  and  finally  seized  the  ship's  papers, 
over  192  yen  in  cash,  watches  and  other  articles  belonging  to  the 
helpless  crew.  The  latter,  together  with  the  raiders,  then  left  the 
sailing  vessel,  which  was  destroyed  by  explosives  which  the  Russians 
placed  in  the  vessel  before  quitting  her.  On  August  1st,  the  Russian 
warships  arrived  at  Vladivostock  via  Tsugaru  Straits,  and  after  a 
detention  of  seven  days  the  crew  of  the  Jizai  Maru  were  taken  on 
board  a  German  steamer,  which  conveyed  them  to  Muroran,  where 
they  arrived  on  the  9th  inst.  Prior  to  their  release  the  men  were 
questioned  by  the  Russian  officers  regarding  the  condition  of  Yoko- 
suka  naval  station  and  other  matters,  but  no  definite  reply  was  given 
the  enemy. 

The  substance  of  the  information  furnished  by  Moshichi 
Okata,  the  master  of  the  Fukuju  Maru,  is  as  follows: 

At  9  a.m.,  on  July  21,  the  Fukuju  Maru  left  Port  Fu-yao  for  Port 
Uraga,  laden  with  6619  packages  of  salt,  and  sailed  eastward,  to- 
gether with  the  Jizai  Maru,  which  was  met  at  Naruto  while  the  for- 
mer was  seeking  shelter  there  from  the  squall.  At  about  3  p.m.,  on 
the  24th,  while  sailing  at  a  distance  of  about  four  nautical  leagues 
from  the  Jizai  Maru,  about  12  or  13  nautical  leagues  from  Yokosuga, 
Shizuoka  Prefecture,  she  sighted  three  large  vessels,  apparently  war- 
ships, in  the  offing  of  Oshima,  although  their  nationality  could  not 
be  made  out  owing  to  the  absence  of  flags.  She  soon  perceived, 
however,  that  they  were  Russian  warships  when  two  of  the  three 
surrounded  the  Jizai  Maru  and  fired  at  her.  Then  one  warship 
came  near  the  Fukuju  Maru,  and  fired  several  shots  at  her  from 
a  distance  of  three  or  four  cho  (about  25  feet)  and  signalled  to  be 
prepared. 

Then  a  boat  was  lowered  from  the  warship,  manned  with  about  20 
bluejackets,  including  one  officer,  and  was  rowed  towards  us.  On 
boarding  our  ship,  the  officer,  whom  I  could  not  understand  though 
he  tried  to  convey  his  meaning  by  gestures,  at  last  seized  me  by  the 


298  LAWS   OF  NAVAL  WARFARE.  [PART  III. 

arm  and  forced  me  to  go  into  the  boat.  Then  followed  the  bluejackets' 
rummage  among  the  crew's  belongings,  apparently  without  the  offi- 
cer's consent  thereto.  They  brought  out  an  octagonal  clock,  and  40 
yen  in  cash  which  had  been  deposited  in  a  drawer.  I  was  roughly 
pushed  back  when  I  turned  to  the  master's  cabin  to  get  important 
papers  and  my  master's  certificate.  The  muskets  which  they  carried, 
however,  were  not  resorted  to.  The  sinking  was  carried  out  by  means 
of  two  explosives  left  by  them  when  quitting  the  vessel;  one  in  the 
central  part  of  the  ship  and  the  other  under  the  foremast,  which  they 
fired  at  when  the  boat  was  about  one  cho  distant  from  the  ship. 

We  were  taken  on  board  the  Rurik,  where  we  found  eleven  of  the 
crew  of  the  Hokusei  Haru,  sunk  off  Muroran,  detained  in  the  hold. 
On  the  following  day,  we  also  met  24  Japanese  sailors  and  16  Chinese, 
who  had  been  on  board  the  German  Thea,  sunk  off  Nojima,  Awa  prov- 
ince; thus  making  up  58  altogether,  four  foreigners  being  detained  in 
a  different  cabin.  Our  food  consisted  of  Chinese  rice  boiled  with  oil, 
brown  bread  and  watery  soup  and  thrice  a  day  Japanese  tea  was 
served  besides  the  above. 

We  were  allowed  to  promenade  for  half  an  hour  to  one  hour  every 
day  within  a  plot  on  deck  limited  by  a  rope,  and  also  to  take  a  bath 
every  day.  In  short,  the  treatment  we  received  there  was  not  so 
bad  as  we  expected. 

At  3  p.m.,  on  the  first  inst.,  we  arrived  at  Vladivostock — by  what 
course  I  am  quite  ignorant,  having  been  confined  in  a  lower  cabin — 
and  were  sent  to  the  Bluejackets'  Garrison,  on  the  3rd,  at  10  a.m., 
where  rude  plank  beds  were  given  us  to  sleep  on.  At  six  in  the  even- 
ing an  officer  came,  and  in  a  gentle  tone,  to  which  we  were  quite 
unaccustomed,  told  us  that  we  were  to  be  sent  back  home  on  board 
a  steamer,  at  7.30,  the  following  morning.  In  the  morning  at  7,  we 
received  sanitary  examinations,  medicines  being  dealt  to  the  sick, 
and  then  were  escorted  by  about  20  bluejackets  as  far  as  the  pier, 
where  we  boarded  a  German  steamer.  At  that  time  we  first  learned 
that  the  crew  of  the  Jizai  Haru  had  been  detained  on  board  the 
Gromoboi. 

The  German  steamer,  departing  from  Vladivostock  at  10  a.m.  on 
the  same  day,  duly  arrived  at  Muroran  at  6.30  p.m.  At  9  we  came 
back  to  Uraga,  our  native  place. 

On  our  arrival  at  Vladivostock,  we  were  menaced  by  a  certain 
interpreter  who  made  minute  inquiries  regarding  our  names,  addresses 
and  families,  and  at  length  being  asked  about  our  safety  replied  that 
though  non-combatants,  all  the  Japanese  were  to  be  despatched.  He 
is  said  to  have  been  pretending  to  be  a  Korean,  although  his  features 
and  language  indicated  his  Japanese  birth. 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     299 

VII.  The  Sinking  of  the  Japanese  Sailing  Ship,  Hachiman 
Maru  No.  3  and  HoJcsei  Maru  No.  1. 

(By  the  fifth  raid  of  the  Vladivostock  Squadron.) 

On  Monday,  the  5th  May,  1905,  the  Vladivostock  Squadron 
made  its  last  descent.  At  2  p.m.,  the  same  day,  we  received  the 
following  report: 

Mr.  Sonoda,  the  Governor  of  Hokkaido,  to  Baron  Komura. 

5th  May,  1905. 
Minister  for  Foreign  Affairs: 

4  Russian  men-of-war  surrounded  and  set  fire  to  a  Japanese  sailing 
ship,   3   nautical   miles   off  the  coast.     They   steamed   north. 

The  ship  mentioned  above  was  the  Hachiman  Maru  No.  3. 

The  St.  Petersburg  Telegraph  Agency  published  General 
Linewitch's  telegram  to  the  Czar,  dated  May  7th,  to  the  effect 
that  Captain  Eoden  reconnoitred  the  Japanese  coast  with  tor- 
pedo boats,  and  burned  a  schooner  two  miles  oif  Cape  Sutsuki, 
having  previously  landed  the  men  on  shore.  A  second  schooner 
was  taken  15  miles  from  the  Japanese  coast  and  brought  as  a 
prize  to  Vladivostock. 

The  other  ship  mentioned  in  the  above  telegram  was  the 
Japanese  sailing  ship  Daijin  Maru. 

The  detailed  report  of  the  Governor  of  Hokkaido  concerning 
the  sinking  of  the  Hachiman  Maru  No.  3  was  as  follows : 

Regarding  the  Russian  bombardment  of  our  sailing  ship,  which 
I  telegraphed  to  you  the  other  day,  I  was  furnished  with  particulars 
from  the  police  master  of  the  locality  concerned,  which  are  substan- 
tially as  below: 

The  sailing  ship  Hachiman  Maru  No.  3  (about  206  tons),  belong- 
ing to  one  G.  Arichika,  Kono  village,  Nanjio  county,  Echizen  Province, 
laden  with  250  koku  of  salt  and  300  koku  of  sugar,  and  with  the 
master  Hioshichi  Omono,  and  10  men  on  board,  left  Wajiri,  Kitami 
Province,  on  the  29th  prox.,  and  while  sailing  three  nautical  miles 
off  the  coast  of  Shiribeshi  Province,  a  little  past  noon,  on  the  5th  inst., 
sighted  4  men-of-war  moving  towards  her.  Each  of  them  hoisted  the 
Russian  flag  and  lowered  a  boat,  manned  with  8  or  9  bluejackets. 
Coming    aboard,   the    Russians    deprived    the    crew   of   their    cash    and 


300  LAWS   OF  NAVAL  WARFARE.  [PART  III. 

watches  and  ordered  them  to  betake  themselves  to  the  ship's  boat. 
Then  they  sprinkled  petroleum  on  the  ship,  and  soon  after  set  fire  to 
her  by  two  shots. 

The  crew  rowed  for  the  coast,  and  were  rescued  by  fishers  who 
came  out  to  meet  them.  The  helpless  ship  sank  at  5  p.m.,  the  same 
day.  According  to  what  the  crew  said,  the  enemy's  warships  were 
gray-painted,  two-funnelled,  without  masts.  Three  of  them,  most 
probably  torpedo  boats,  were  about  30  feet  in  length;  one,  apparently 
a  destroyer,  being  about  100  feet. 

Eegarding  the  disaster,  the  foreign  press  were  aware  of  the 
illegal  act  on  the  part  of  the  Eussians.  For  instance,  the  Ber- 
lin Local  Anzeiger  stated  that  the  manner  of  Kussian  procedure 
was  by  no  means  free  from  criticism,  since  it  was  a  grave  mis- 
take for  the  Eussians  to  satisfy  themselves  with  such  trifling 
booty  as  a  small  Japanese  sailing  vessel,  and  moreover  by  de- 
stroying the  prize,  they  raised  anew  a  disputed  question  which 
had  already  caused  much  accusation  against  them  in  the  course 
of  last  year. 

VIII.     The  Sinking  of  the  Keisho  Maru.^ 

(By  the  last  raid  of  a  torpedo  destroyer  belonging  to  the 
Vladivostock  Fleet.) 

On  Aug.  3rd,  1905,  at  4  a.m.,  the  Korean  S.  S.  Keisho  Maru 
was  sunk  by  a  Eussian  destroyer,  in  a  most  unlawful  manner, 
as  will  appear  from  the  following  quotation.  How  the  said 
ship  was  sailing  in  a  law-abiding  way,  and  how  Eussians  in- 
jured the  crew  without  any  lawful  warning,  being  duly  consid- 
ered, there  is  no  need  of  hesitation  in  criticising  the  Eussian 
conduct  as  barbarous. 

The  following  was  the  official  report  with  the  date  of  Au- 
gust 3,  1905,  concerning  the  affair: 

The  S.  S.  Keisho  Maru  (169  tons),  belonging  to  Hori  Rikitaro  at 
Soul,  was  shot  at  by  two  Russian  destroyers,  off  Kiojo,  on  August  3, 
1905,  at  4.48  a.m.  The  master  and  a  boy  were  killed,  and  of  the 
crew  one  was  seriously  and  another  slightly  wounded.  The  ship  be- 
took herself  to  Tokushin  for  refuge.  Upon  examination,  it  was  found 
she  had   received  one  shot  under  the  water  level,  starboard   side,  two 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     301 

between  the  water  level  and  deck,  four  between  the  deck  and  the 
bridge,  and  one  on  the  funnel,  the  enemy  having  discharged  almost 
60  shells.  In  the  incident,  the  master  and  the  boy  were  killed,  the 
chief  cook  was  seriously  wounded  and  died  one  hour  after  the  inci- 
dent, and  of  the  crew  a  Korean  was  slightly  wounded.  The  engine 
room  being  safe,  no  great  trouble  will  be  met  with  in  navigation. 

The  owner's  report  was  as  follows : 

Details  of  the  Keisho  Maru  Disaster. 
The  S.  S.  Keisho  Go.  Korean  by  nationality,  has  been  engaged  for 
years  in  calling  at  non-trading  ports  along  the  coast  of  Kamikiantai. 
The  recent  disaster  took  place  while  sailing  towards  Seishin,  having  left 
Rinkoshin  on  Aug.  3,  at  4.30  a.m.,  laden  with  3021  packages  containing 
military  provisions,  sanitary  and  building  materials  and  other  things. 
On  Aug.  3rd,  at  4.20  a.m.,  about  five  nautical  leagues  north  of  the 
Cape  of  Giotaishin,  two  destroyers  appeared  on  the  port  side,  having 
suddenly  veered  towards  the  starboard,  and  the  steamer  was  forced 
to  stop.  Then  a  shower  of  shots  killed  the  master  and  a  second-class 
passenger  by  name  Bunkichi  Higuchi,  and  seriously  wounded  Sakugoro 
Katami,  the  chief  cook.  After  about  20  minutes'  cannonading,  seeing 
the  steamer  was  foundering,  the  enemy's  destroyers  took  their  course 
towards  Vladivostock.  We  betook  ourselves  to  Tokushin,  where  the 
three  dead  (for  the  seriously  wounded  died  on  the  ship's  arrival  here) 
and  the  wounded  were  properly  disposed  of,  and  the  whole  freight 
landed.  Although  upon  examination  the  ship  was  found  to  have  re- 
ceived about  10  shots,  none  were  so  serious  as  to  prevent  her  from 
further  navigation.  The  steamer,  therefore,  leaving  Tokushin  yester- 
day, at  8.50  a.m.,  arrived  at  Joshin  the  same  afternoon,  at  6.40.  Here 
we  present  you  with  full  details  of  the  late  disaster,  together  with 
the  list  of  the   crew's  names. 

ASAKICHI    TOKUNAGA, 
TSUNETARO    OSHIBO, 
TOKICHI   KUWABARA. 

IX.     The  Sinking  of  the  Ean-yei  Maru. 

(By  the  Port  Arthur  Squadron.) 

This  was  the  solitary  instance  of  a  merchant  ship  sunk  by 
the  Port  Arthur  Squadron. 

The  first  official  report  concerning  the  incident  was  as  fol- 
lows: 


302  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

Official  Report. 

A  Chefoo  despatch,  dated  March  29,  received  by  the  Naval  Office, 
says  that  the  Japanese  steamer  Han-yei  Maru  running  between  Chefoo 
and  other  Chinese  ports,  was  captured  by  Russian  warships  on  March 
26,  near  Tai-chin  island,  Miao  Archipelago.  Ten  Japanese  and  seven 
Chinese  on  board  were  taken  prisoners.  Her  captain  and  two  sailors, 
however,  escaped  in  a  junk,  and  arrived  at  Chefoo  on  the  26th,  by 
way   of   Ning-hai-chow. 

The  steamboat  was  fired  at  and  sunk  by  the  Russian  warships, 
which  then   returned  to  Port  Arthur. 

Below  is  the  Eussian  report  concerning  the  same: 

A  Russian  Version. 
In  connection  with  the  above  incident,  an  official  report  of  Major- 
General  Flug  at  Mukden,  dated  the  27th  inst.  and  received  at  Shanghai, 
states  that  on  the  previous  day  the  Russian  Squadron  captured  a  Japa- 
nese steamer  and  a  junk,  in  the  vicinity  of  Kang-tao  Island,  one 
Whitehead  torpedo  being  found  in  the  former  vessel.  The  crew  of 
the  steamer,  adds  the  report,  were  taken  prisoners,  and  the  vessel  was 
fired  at  and  sunk  by  the  Russians. 

According  to  the  Novy  Cry  of  the  29th  of  March,  the  Eus- 
sian Squadron  at  the  time  the  Han-yei  Maru  was  sunk  con- 
sisted of  the  Askold,  Novih,  and  one  more  warship,  followed  by 
a  flotilla  of  torpedo  boats.  Those  concerned  in  the  sinking 
were  the  Novilc,  and  a  destroyer.  The  original  intention  of  the 
Novik  to  tow  the  Hanyei  Maru  as  far  as  Port  Arthur  was,  ac- 
cording to  the  same  authority,  found  impossible,  owing  to  the 
breaking  off  of  the  capstan  and  bollard-head,  and  the  speed  of 
the  ship  having  been  insufficient  to  let  her  sail  to  that  destina- 
tion by  herself,  the  sinking  was  the  only  alternative.  The  Chi- 
nese disguise  which  the  Japanese  were  assuming  caused  the 
Eussians  to  have  the  suspicion  that  the  ship  was  commissioned 
to  provide  the  Miaotao  Archipelago  with  a  signal  station  for 
military  purposes,  and  the  existence  of  a  Whitehead  on  board 
seems  to  have  afforded  them  justification  for  treating  her  as 
having  a  hostile  aim. 

On  May  3rd,  1904,  it  was  reported  the  following  telegram 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     303 

from  the  U.  S.  Ambassador  to  Kussia  was  received  by  the  State 
Department : 

"  In  the  case  of  the  Han-yei  Maru,  Viceroy  replies  that  this 
boat  was  seized  at  Miaodam  on  account  of  proof  of  hostile  in- 
tention towards  Bussian  authorities.  The  subjects  on  board  the 
said  vessel,  some  of  whom  were  dressed  as  Chinese,  were  taken 
to  Port  Arthur,  and  placed  in  the  hands  of  the  judicial  author- 
ities for  examination." 

The  following  statement  by  a  Chinese  passenger  on  board 
ihe  Han-yei  Maru  deserves  to  be  cited : 

Statement  of  a  Passenger. 

The  sinking  of  the  Japanese  steamer  Han-yei  Maru  by  Russian  war- 
ships took  place  near  the  Miao-tao  Islands  on  the  26th  ult.  The 
Chinese  portion  of  the  crew,  who  recently  returned  by  junk  from  Port 
Arthur,  have  furnished  the  Tokyo  Asahi's  correspondent  at  Chefoo  with 
the  following  description.    The  name  of  the  narrator  is  Chan  Tai-yung. 

The  Han-yei  Maru  arrived  at  To-ki-tao  Island  on  the  25th  ult.,  and 
three  Japanese  and  two  Chinese,  including  Chan,  landed  there.  A  Japa- 
nese, who  had  been  left  there  on  the  previous  voyage,  told  the  party 
that  the  Chinese  on  the  island  had  picked  up  a  Japanese  torpedo,  15 
feet  in  length.  He  proposed  to  buy  it,  but  on  being  asked  2000  yen  he 
abandoned  his  intention. 

The  party  then  told  the  Chinese  that  it  was  a  Japanese  torpedo 
and  was  of  no  use  to  them,  and  as  no  one  was  likely  to  purchase  it, 
they  had  better  return  it  to  the  Japanese  Consul  at  Chefoo,  who  would 
doubtless  reward  them. 

The  villagers  subsequently  parted  with  the  torpedo  for  40  yen,  and 
the  dangerous  missile  was  taken  on  board  the  Han-yei  Maru  in  the 
evening. 

The  Last  of  the  Han-yei  Maru. 

The  next  morning  the  steamer,  with  a  junk  in  tow,  left  Ta-kin-tao 
for  North  Hwang-chgng-tao  Island.  Seven  Chinese  were  on  board  the 
junk,  which  was  laden  with  vegetables  and  provisions.  At  10  a.m.  the 
steamer  approached  Ta-kin-tao,  when  smoke  was  observed  in  the  direc- 
tion of  Hwang-ch§ng-tao,  and  shortly  afterwards  a  large  warship  ap- 
peared on  the  horizon.  In  addition,  three  vessels,  which  had  been  in 
sight  for  some  time,  but  which  owing  to  the  absence  of  smoke  were 
thought  to  be  Chinese  fishing  vessels,  turned  out  to  be  destroyers.  The 
captain  had  watched  the  three  vessels  through  his  glasses  and  de- 
clared them  to  be  British  ships.     The  crew  of  the  Han-yei  Maru  were 


304  LAWS   OF  NAVAL  WARFARE.  [PART  III, 

not  able  to  determine  the  nationality  of  the  destroyers  until  the  lat- 
ter were  close  at  hand.  When  the  Russian  flag  was  seen  flying  from 
one  of  the  destroyers,  the  captain  ordered  the  Japanese  flag  to  be 
hoisted,  which  was  immediately  done.  Prior  to  this,  the  Russians 
seem  to  have  signalled  to  the  vessel  to  stop,  but  on  the  Japanese  flag 
being  displayed,  the  Russians  at  once  opened  fire.  The  junk  was 
hauled  close  to  the  steamer  and  Chan  and  four  other  Chinese,  as  well 
as  four  Japanese,  jumped  into  it,  the  number  of  passengers  on  the 
junk  being  13,  exclusive  of  three  sailors.  Meanwhile  Chan  disguised 
himself  as  a  fisherman  and  severed  the  tow-rope.  A  Russian  officer, 
rowed  by  four  or  five  sailors,  put  off  to  the  junk  and  arrived  on  board 
the  latter.  Chan  saw  two  Japanese,  clothed  in  foreign  costume,  ap- 
proach the  Russian  officer.  The  Chinese  on  board  showed  their  queues 
and  the  Japanese  also  uncovered  their  heads.  The  Russian  boat  car- 
ried to  the  warship  the  officer  and  the  Japanese.  The  junk  endeav- 
oured to  escape,  but  was  prevented  by  a  Russian  destroyer,  which 
came  alongside  and  took  off  all  the  Chinese  passengers. 

When  some  three  furlongs  from  the  Han-yei  Maru,  the  destroyer 
opened  fire  on  the  latter,  and  this  example  was  followed  by  the  other 
destroyers,  some  20  shots  being  discharged  in  all.  The  time  was  11 
o'clock,  and  the  place  three  miles  to  the  east  of  Ta-kin-tao.  The  war- 
ships and  destroyers  then  proceeded  to  Port  Arthur,  which  was  reached 
in  two  and  a  half  hours. 

The  Examination  of  the  Chinese. 
Hoang-king-wu,  one  of  the  Chinese  captured  by  the  Russians,  had 
been  employed  by  the  Tokyo  Asahi's  Chefoo  correspondent  to  collect 
news,  using  the  junk  for  this  purpose.  He  coached  the  Chinese  in 
what  they  should  say  in  the  event  of  being  stopped  by  the  Russians. 
On  the  evening  of  the  26th  ult.  they  were  examined  by  M.  Jijinkoff, 
an  agent  of  Vice-Admiral  Makaroff,  to  whom  they  declared  they  were 
provision  dealers  and  had  come  from  Chefoo  to  sell  their  goods.  They 
did  not  know  whether  the  sunken  ship  was  Japanese  or  Russian  and 
had  paid  the  steamer  to  tow  the  junk.  Not  only  did  they  deny  all 
knowledge  of  a  torpedo  being  on  board,  but  stated  they  did  not  know 
what  a  torpedo  was.  They  were  not  aware  that  the  Japanese  had 
paid  40  yen  for  a  torpedo  at  Ta-kin-tao,  for  they  did  not  land  at  that 
island,  where  their  vegetables  were  not  likely  to  sell.  The  Russians 
were  satisfied  with  the  answers  and  released  the  men,  who  were  told 
to  hire  a  junk  and  leave  the  place. 

The  present  disaster  contains  various  questions  of  fact,  as, 
for  instance,  whether  the  torpedo  on  board  the  Han-yei  MarUr 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     305 

was  really  intended  as  a  hostile  missile  or  not,  and  if  the  sink- 
ing did  not  take  place  in  neutral  waters,  and  so  on. 

Eegarding  the  first  question,  we  were  furnished  with  the 
following  information,  dated  April  20th,  1904,  the  contents  of 
which  substantially  coincides  with  the  statement  above  cited: 

The  Russian  Allegation  Found  to  oe  Baseless. 

The  Tokyo  Asahi's  Chefoo  correspondent  wires  that  on  the  question 
of  the  presence  of  a  torpedo  on  board  the  Tokyo  Asahi's  despatch  boat 
Ean-yei  Maru,  which  was  sunk  by  the  Russians,  being  referred  to  the 
Taotai  of  Chefoo  by  Mr.  Mizuno,  Japanese  Consul,  the  Taotai  referred 
the  matter  to  the  Governor  of  Teng-chow-fu,  who,  in  reply,  stated 
that  the  torpedo  had  been  picked  up  at  sea  by  a  Chinese  and  brought 
to  To-ki-tao.  On  the  arrival  there  of  the  Ean-yei  Maru,  the  torpedo 
was  purchased  by  some  one  on  board  for  40  yen,  the  intention  being 
to  keep  the  missile  as  a  curiosity. 

The  report  was  submitted  to  Mr.  Mizuno  on  the  17th  inst.  As 
the  Russians  have  claimed  the  right  of  sinking  the  Ean-yei  Maru,  on 
the  ground  that  she  was  armed,  this  claim  will  no  longer  be  tenable. 

The  following  report  was  received  from  Chefoo  on  April 
1,  1904: 

"  The  fishers  of  the  Miao-tao  Islands  applied  to  all  the  consulates 
in  Chefoo  for  the  sale  of  a  fish  torpedo.  The  same  torpedo  was  found 
on  board  the  Ean-yei  Maru,  having  been  apparently  sold  by  the  vil- 
lagers to  some  passengers  of  the  ship  while  she  was  calling  at  those 
Islands.  The  master  and  two  others  who  came  hither  being  entirely 
ignorant  of  the  fact,  is  awaiting  the  further  information  from  the 
quarters  concerned." 

Again,  the  following  report  was  sent  in  April  20,  1904: 

Concerning  the  Fish  Torpedo  on  Board  the  Ean-yei  Maru. 

In  order  to  obtain  some  documentary  evidence  which  may  prove  that 
the  fish  torpedo  in  question  was  an  obsolete  one  picked  up  by  in- 
habitants of  To-chi-tao,  and  had  nothing  to  do  with  any  hostile  pur- 
pose, the  Government  office  at  this  port  was  requested  to  make  an 
inquiry  on  the  islands  concerning  the  same.  The  answer  received  is 
as  follows: 

Facts  affirm  that  the  torpedo  in  question  was  picked  up  by  a  Chi- 
nese fishing  boat  and  sold  to  the  Japanese  for  the  sum  of  40  yen. 


306  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

Thus  the  nature  of  the  questionable  torpedo  was  ascertained. 

About  this  affair  it  must  be  noticed  that  the  firing  on  the 
Japanese  steamer  by  Eussian  warships  took  place  within 
China's  territorial  waters,  after  close  examination  of  the  Cap- 
tain, that  the  firing  took  place  within  three  miles  east  of  Ta- 
chin-tao.  According  to  the  captain,  the  steamer  left  Ta-chin- 
tao  the  morning  of  March  26th  for  the  south  of  Huang-cheng- 
tao,  steaming  north-northeast.  The  chart  shows  that  a  direct 
line  connecting  the  islands  passes  one  and  a  half  miles  east  of 
Ta-chin-tao ;  the  steamer  sank  within  three  miles  off  the  islands. 
There  is  no  doubt  about  the  Eussian  violation  of  China's  neu- 
trality by  opening  fire  upon  a  Japanese  ship  within  the  terri- 
torial waters. 

Eegarding  the  same,  the  Japanese  Government  warned  the 
Chinese  Government. 

As  the  result  of  the  warning,  the  Minister  of  the  Navy  and 
the  Governor  of  Shantung  were  instructed  to  make  inquiry 
about  the  case.  According  to  the  report  by  the  Tao-tai  of  Che- 
foo,  the  Han-yei  Maru  was  fired  at,  and  sunk  off  Ta-chi-tao, 
which  was,  according  to  another  report  by  the  commander  of 
the  Hai-tien,  in  Latitude  38°  17'  N.,  Longitude  20°  52'  E., 
within  2  miles  of  Ta-chi-tao,  4  miles  south  of  Huang-chen 
Island.  Upon  receiving  this  report,  the  Chinese  Foreign  De- 
partment demanded  an  explanation  on  the  above  grounds  from 
the  Eussian  Minister. 

The  ten  Japanese  found  on  board  the  Han-yei  Maru  were 
taken,  under  guard,  on  board  the  Novik  and  Ermark.  On  the 
6  of  April,  1904,  instructions  were  telegraphed  to  Mr.  Taka- 
hira,  the  Minister  to  the  United  States  of  America,  requesting 
the  assistance  of  the  American  Government  in  securing  the  re- 
lease of  the  crew  above  mentioned  in  the  following  sense : 

The  Hcm-yei  Maru  (60  tons),  chartered  by  Chefoo  correspondents 
of  the  Osaka  Asahi  Shimbun,  which  steamed  to  the  Miao-tao  Islands 
to  hire  a  Chinese  junk,  was  sunk  by  several  Russian  men-of-war,  on 
March  26,  near  Ta-ching-tao.  Ten  Japanese  and  seven  Chinese  found 
on  board  were  taken  to  Port  Arthur,  of  whom  the  Chinese  were  re- 
leased, but  our  men  are  said  to  be  still  detained  there. 


CHAP.  I.,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     307 

For  the  present,  the  unlawful  bombardment  which  took  place  with- 
in three  nautical  miles  of  Ta-ching-tao,  is  to  be  dealt  with  separately 
— to  request  the  efforts  of  the  American  Government  for  the  speedy- 
release  of  the  detained,  one  of  whom  is  the  agent  of  the  said  cor- 
respondents, four  are  crew,  and  five  passengers,  is  necessary.  For  fur- 
ther information  it  should  be  stated,  that  the  Han-yei  Maru  had  on 
board  a  fish  torpedo.  Undoubtedly  it  wil  be  the  cause  of  the  unfavour- 
able misunderstanding.  It  was,  however,  one  that  had  been  picked  up 
by  island  fishers,  just  after  the  sea  combat  at  Pigeon  Bay,  and  sold  to 
a  passenger  on  board  the  Han-yei  Maru.1 

Minister  Takahira  accordingly  set  about  the  negotiations, 
the  proceedings  of  which  are  fully  contained  in  the  following 
correspondence : 

Legation  of  Japan,  Washington,  April  9th,  1904. 
Sib: 

I  have  the  honour  to  inform  you  that  I  am  in  receipt  of  a 
telegram  from  His  Imperial  Majesty's  Minister  for  Foreign  Affairs, 
instructing  me  to  bring  to  your  notice  the  following  facts,  and  to 
request  the  exercise  of  the  good  offices  of  the  Government  of  the  United 
States  with  reference  thereto. 

It  appears  that  a  Japanese  steamer,  the  Han-yei  Maru,  of  sixty-four 
tons  displacement,  which  was  chartered  by  a  correspondent  of  the 
Asahi  Shimbun,  a  newspaper  published  at  Osaka,  was  fired  upon  and 
sunk  by  Russian  men-of-war  on  the  26th  ultimo,  while  within  a  dis- 
tance of  less  than  one  marine  league  from  Dai-ki-ga,  one  of  the  Miao- 
tao  Islands,  a  group  belonging  to  China.  There  were  ten  Japanese 
on  board  the  steamer,  the  correspondent  of  the  Asahi,  four  members 
of  the  crew  and  five  passengers,  besides  seven  Chinese.  All  of  these 
persons  were  taken  to  Port  Arthur;  but  subsequently  the  Chinese  were 
released,  while  the  Japanese,  it  is  reported,  are  confined  on  board  the 
Russian  men-of-war  Novik  and  Yermak.  It  is  reported  further  that  a 
fish-head  torpedo  was  found  on  the  Han-yei  Maru,  a  circumstance  which 
might  be  construed  disadvantageously  to  the  persons  on  board  the 
steamer.  The  fact  is,  however,  that  the  torpedo  was  purchased  by 
one  of  the  passengers  from  a  Chinese  fisherman  of  the  Islands,  who  had 
picked  it  up  from  the  sea  after  the  naval  engagement  at  Pigeon  Bay. 

From  the  information  in  their  possession,  the  Imperial  Government 
is  convinced  that  the  correspondent  of  the  Asahi  was  acting  solely  in 
the  performance  of  his  professional  duties,  having  been  induced  to 
charter   the  Han-yei   Maru   and  to  go  to  the   locality   where   he  was 

1  Foreign  Relations,  1904,  pp.  433-434. 


308  LAWS   OF  NAVAL   WARFARE.  [PART  IIL 

captured,  by  the  extraordinary  success  of  the  correspondents  of  several 
foreign  newspapers  who  had  employed  small  steamers  for  the  purpose 
of  observing  the  naval  engagements  in  the  vicinity  of  Port  Arthur. 
He  believed,  moreover,  that  he  was  perfectly  safe  at  the  time,  as  he 
was  within  the  territorial  waters  of  China. 

The  Imperial  Government,  having  released  all  passengers  on  board 
the  Russian  merchant  vessels  captured  by  them,  and  even  the  officers 
and  members  of  the  crews,  excepting  those  whose  presence  was  deemed 
necessary  in  the  trials  before  the  Admiralty  Court,  feel  that  they  are 
justified  in  entertaining  the  hope  that  the  Russian  Government  will 
adopt  similar  measures  with  reference  to  Japanese  non-combatants  in 
their  country. 

While  reserving  their  views  as  to  the  lawfulness  of  the  action  of 
the  Russian  vessels  in  sinking  a  Japanese  vessel  in  neutral  waters  and 
making  prisoners  of  those  on  board,  the  Imperial  Government  in- 
structs me  to  express  the  hope  that  you  will  find  it  possible  to  exercise 
your  good  offices  for  the  purpose  of  obtaining  from  the  Russian  Gov- 
ernment the  release  of  these  Japanese  prisoners,  all  of  whom  are  non- 
combatants  and  none  of  whom  were  engaged  in  the  commission  of  acts 
hostile  to  Russia. 

Accept,  Mr.  Secretary,  the  renewed  assurance  of  my  highest  con- 
sideration. .     •    ,v      --    «i 

(Signed)     K.  Takahira. 
Honourable  John  Hay, 
Secretary  of  State. 

The  answer  is  as  follows: 

Mr.  Hay  to  Mr.  Takahira. 
Department  of  State,  Washington,  April   12,   1904. 
SiE: 

Upon  receipt  of  your  note  of  the  9th  instant,  the  Department 
at  once  instructed  Mr.  McCormick  at  St.  Petersburg  to  use  his  good 
offices  in  behalf  of  the  members  of  the  crew  and  the  five  passengers 
of  the  press  boat  Han-yei  Maru. 

I  am  to-day  in  receipt  of  a  telegram  from  Mr.  McCormick  stating 
that  the  Russian  Minister  for  Foreign  Affairs  has  submitted  this  case 
to  Admiral  Alexieff  by  wire,  from  whom  he  has  also  again  asked  for 
a  reply  to  the  request  for  permission  for  a  neutral  ship  to  visit  Khor- 
sakov  to  take  off  the  Japanese  Consular  Staff  and  subjects. 

Accept,  Mr.  Minister,  the  renewed  assurances  of  my  highest  con- 
sideration. ■  ,/'  „ 

(Signed)     John  Hay. 

Mr.  Kogoro  Takahira,  etc. 


CHAP.  L,  SECT.  I.]      THE   SINKING   OF   JAPANESE   VESSELS.     309 

Mr.  Takahira  to  Mr.  Hay. 
Legation  of  Japan,  Washington,  April  28th,  1904. 
Sib: 

In  your  note  of  the  12th  instant  you  were  so  good  as  to  in- 
form me  that  you  had  instructed  the  United  States  Ambassador  at  St. 
Petersburg  to  use  his  good  offices  in  behalf  of  the  members  of  the 
crew  and  the  five  passengers  of  the  press  boat  Han-yei  Maru,  and  that 
the  Ambassador  had  replied  to  you  that  the  Russian  Minister  of  For- 
eign Affairs  had  submitted  the  case  to  Admiral  Alexieff  by  wire.  I 
reported  to  my  Government  the  steps  thus  kindly  taken  by  you,  in 
response  to  the  request  I  had  the  honour  to  make  on  the  9th  instant, 
and  I  am  now  in  receipt  of  a  telegram  from  His  Excellency  the  Minis- 
ter for  Foreign  Affairs  instructing  me  to  thank  you  for  your  kind 
compliance  with  that  request  and  to  ask  that  you  will  add  to  the 
obligation  under  which  you  have  placed  the  Imperial  Government  in 
the  matter  by  further  instructing  the  United  States  Ambassador  at 
St.  Petersburg  to  ascertain  what  response  has  been  made  to  the  mes- 
sage to  Admiral  Alexieff  above  referred  to. 

Accept,  Mr.  Secretary,  renewed  assurances  of  my  highest  consid- 
eration. 

(Signed)     K.  Takahira. 

Again  on  the  2nd  of  May  the  following  answer  was  given : l 

Mr.  Hay  to  Mr.  Takahira. 

Department  of  State,  Washington,  May  2,  1904. 
Sir: 

I  have  the  honour  to  enclose  herewith  a  copy  of  a  telegram, 
dated  the  1st  instant,  from  the  United  States  Ambassador  at  St.  Peters- 
burg, in  regard  to  the  case  of  the  Han-yei  Maru. 

Accept,  Mr.  Minister,  renewed  assurances  of  my  highest  considera- 
tion. 

(Signed)     John  Hay. 

( Enclosure. ) 

St.  Petersburg,  May   1,   1904. 
Secretary  of  State,  Washington: 

In  the  case  of  the  Han-yei  Maru,  the  Viceroy  replies  that  this  boat 
was  seized  at  Miaodam  on  account  of  evident  proof  of  hostile  inten- 
tions towards  the  Russian  authorities.  The  subjects  on  board  the  said 
vessel,  some  of  whom  were  dressed  as  Chinese,  were  taken  to  Port  Ar- 
thur and  placed  in  the  hands  of  the  judicial  authorities  for  examina- 
tion. I  am  awaiting  further  particulars  (which  will  be  transmitted 
1  Foreign  Relations,  1904,  p.  719. 


310  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

as  soon  as  received)  as  to  steamers  equipped  as  hospital  ships.  The 
Viceroy  accepts  the  proposal  for  exchange  of  information  concerning 
prisoners  of  war,  transmitting  it  as  often  as  practicable,  although  not 
undertaking  to  do  so  at  intervals  of  ten  days,  on  account  of  local 
conditions  making  this  difficult.  I  shall  not  fail  to  press  the  inquiry 
from  time  to  time  in  order  that  information  may  be  furnished  as, 
promptly  as  possible  after  it  has  been  received  at  headquarters. 
May  2,  1904.     10.15.  McCobmick. 

Sect.  II.     The  Sinking  of  the  Neutral  Ships. 

(By  the  fourth  raid  of  the  Vladivostock  Squadron.) 
I.  The  Sinking  of  the  Knight  Commander. 
On  July  20,  1904,  the  Vladivostock  Squadron  in  their 
fourth  cruise,  sank  five  Japanese  merchantmen,  the  Takashima 
Maru,  Kaho  Maru,  Hokusei  Maru  No.  2,  Jizai  Maru,  and 
Fukuzin  Maru,  visited  the  British  merchantmen  Samara  and 
Tsinan,  seized  the  German  merchantman  Arabia,  and  sank  the 
British  merchantman  Knight  Commander  and  German  mer- 
chantman Thea. 

Eeuter's  telegram,  dated  St.  Petersburg,  August  2nd,  said 
that  the  Czar  had  received  a  report  from  Vice-Admiral  Skryd- 
loff,  the  substance  of  which  is  as  follows : 

Rear-Admiral  Jessen,  with  the  Rossia,  Gromoboi  and  Roorick,  left 
Sangan  Strait  July  20th.  They  sank  the  Okassima  Maru  and  two 
other  Japanese  schooners.  The  British  Vessel  Samara,  which  had  come 
out  at  Muroran  was  stopped.  Although  it  was  suspected  that  she  was 
engaged  in  contraband  traffic,  the  fact  that  she  was  carrying  no  cargo 
and  was  not  caught  in  the  act,  compelled  them  to  set  her  free.  The 
coasting  vessel  Gildo-union  Maru  was  met  with,  but  was  also  released. 
The  Russian  Squadron  stopped,  on  July  22nd,  100  miles  from  Yoko- 
hama, the  German  steamer  Arabia  which  had  a  considerable  amount  of 
contraband  goods  on  board,  consisting  of  railway  materials  and  flour, 
consigned  to  Japanese  ports.  She  was  sent  to  Vladivostock.  The 
Knight  Commander  was  met  on  July  23rd.  She  was  stopped  only  after 
a  fourth  shot  had  been  fired.  According  to  unofficial  and  incomplete 
documents  in  the  possession  of  the  captain,  and  according  to  his 
declaration,  it  was  shown  that  she  was  carrying  to  Japan  a  cargo 
of  from  3500  to  4000  tons,  composed  mostly  of  railway  materials. 
Having    established    the    fact   that   she   was    undoubtedly   carrying    on 


CHAP.  I.,  SECT.  II.]      THE   SINKING   OF  NEUTRAL   SHIPS.  311 

contraband  traffic,  and  being  unable  to  bring  her  to  the  nearest  Rus- 
sian port,  owing  to  the  insufficiency  of  her  coal,  without  manifest 
danger  to  the  squadron,  the  Russians  sank  her,  after  taking  off  her 
crew  and  papers.  On  the  same  day,  two  more  Japanese  schooners,  with 
full  cargoes  of  salt,  were  destroyed.  The  steamer  Schinan  was  also 
stopped,  but  having  no  contraband,  was  released.  The  German  steamer 
Thea  was  stopped  on  July  24th,  and  being  regarded  as  a  legal  prize, 
was  sunk.  The  squadron  proceeded  at  about  noon  on  August  30th 
towards  Tsugaru  Strait.  At  about  3  p.m.,  a  cruiser,  apparently  the 
Takao,  with  three  torpedo  boats,  a  sailing  vessel  of  the  Kongo  type, 
with  four  torpedo  boats  and  a  coast-defence  battle-ship  of  the  Saiyen 
type  were  sighted.  These  ships  kept  far  astern  of  the  Russian  ves- 
sels, and  at  5  p.m.  they  turned  back.  The  squadron  suffered  no  dam- 
age or  loss  of  men,  and  there  was  no  loss  of  life  on  the  vessels  sunk 
or  taken. 

First  the  Knight  Commander  disaster  shall  be  dealt  with. 
The  Russian  report  of  the  same  incident  is  as  follows: 

According  to  Reuter's  telegram,  the  Russian  official  account  of  the 
sinking  of  the  Knight  Commander  contains   the   following: 

The  ship  only  heaved  to  at  the  second  shell,  having  hoisted  British 
colours.  A  visit  made  to  the  vessel  showed  that  the  captain  had  no 
charter  and  no  manifest,  and  that  certified  copies  of  these  documents 
presented  by  the  captain,  showed  the  cargo  to  be  destined  for  Kobe  and 
Yokohama.  It  was  established  that  the  ship  was  chartered  from 
America  to  Japan  with  a  cargo  of  railway  materials  and  machinery, 
which  were  contraband  of  war.  The  ship  was  therefore  deemed  liable 
to  confiscation.  The  proximity  of  the  enemy's  port,  lack  of  coal  to 
enable  her  to  be  taken  to  a  Russian  port,  and  the  impossibility  of  sup- 
plying her  with  coal  from  the  Russian  cruisers,  owing  to  the  high  sea 
running,  obliged  the  commander  of  the  cruisers  to  sink  the  Knight 
Commander. 

Both  the  Times  and  the  Standard,  commenting  on  the  news 
that  the  Vladivostock  Prize  Court  had  given  its  decision  de- 
claring the  Knight  Commander  to  have  been  a  lawful  prizer 
said  that  this  was  like  hanging  a  man  first  and  then  finding 
him  guilty. 

The  following  evidence  regarding  the  sinking  of  the  British 
steamer  Knight  Commander  was  given  at  the  inquiry  held  at. 
the  British  Consulate,  Yokohama,  on  Wednesday  morning: 


312  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

William  Beaten  Brown,  master  of  the  British  steamer  Tsinan  de- 
posed: "On  the  afternoon  of  July  24th,  1904,  we  were  signalled  to 
stop  in  Latitude  34°  10'  N.,  Long.  133°  E.,  by  the  Russian  cruiser  Rossia. 
They  sent  an  armed  boat's  crew  on  board,  and  the  officer  requested  to 
see  the  papers,  which  I  had  ready  for  his  inspection.  He  signalled 
the  contents  of  the  manifest  to  the  flagship,  asked  for  instructions, 
and  said  they  were  not  going  to  send  a  prize  crew  on  board.  The  offi- 
cer was  very  particular  about  the  consignees  of  the  cargo  and  said 
that  they  had  to  be  very  careful  with  our  flag.  The  next  message  he 
received  by  signal  was  that  the  Admiral  desired  to  send  on  board  the 
crew  of  the  British  steamer  Knight  Commander,  and  that  as  they  were 
British  subjects  I  was  compelled  to  take  them.  It  was  at  first  de- 
cided to  give  us  the  whole  Lascar  crew,  but  subsequently  a  second 
message  came  that  they  would  only  send  21-.  I  then  asked  what  had 
become  of  the  Knight  Commander,  and  he  replied :  '  We  sank  her  this 
morning.'  On  my  asking  why  she  had  been  sunk,  he  said  that  she 
carried  contraband  of  war,  flour  and  railway  materials.  He  said  they 
had  captured  a  German  ship,  a  good  capture,'  which  I  understood  to 
be  within  the  past  day  or  two.  He  said  they  were  very  tired  of  run- 
ning after  small  merchantmen  and  they  had  lost  count  of  how  many 
small  Japanese  tramps  they  had  sunk.  The  21  Lascars  were  sent  on 
board  and  the  officer  made  an  entry  in  my  official  log  book.  Before 
leaving  he  ordered  me  to  blow  off  steam.  I  was  not  to  move  from  my 
present  position  until  the  fleet  was  beyond  the  horizon,  out  of  sight. 
We  got  under  way  at  six.  While  the  Rossia  was  steaming  to  inter- 
cept us  I  saw  the  Gromoboi  stop  alongside  a  small  steamer  which  was 
just  hull  down.  My  attention  was  then  taken  up  by  the  arrival  of 
the  Rossia  and  when  I  looked  again  the  Gromoboi  was  proceeding 
towards  us  and  the  steamer  had  disappeared.  The  serang  who  came 
aboard  told  me  they  sank  her,  and  the  second  officer,  I  believe,  heard 
the  sound  of  firing." 

Frank  Jolliffe,  second  officer,  British  steamer  Tsinan,  said :  "  On  the 
voyage  direct  from  Hongkong  to  Yokohama,  when  about  32  miles  S.W. 
of  Omaizaki,  at  about  3.05  p.m.  on  the  24th  of  July,  1904,  we  sighted 
a  squadron  of  Russian  ships  of  war.  I  was  on  the  bridge  at  the  time. 
At  3.34  p.m.  we  stopped  on  a  signal  being  given,  and  the  Rossia  sent 
a  boat  alongside.  The  Russian  officer,  who  spoke  excellent  English, 
came  on  board,  and  requested  the  production  of  the  ship's  papers,  mani- 
fest, etc.  Before  leaving,  he  made  an  entry  in  Russian  in  the  log 
book.  The  cargo  was  a  general  one,  consisting  of  wool,  rice,  sugar,  tal- 
low, etc.,  also  26  packages  of  machinery,  and  was  not  examined.  The 
Russians  boarded  us  about  3.46  p.m.  and  left  about  4.45  p.m.  The 
Russian  officer  stated  that  they  had  sunk  the  Knight   Commander  at 


CHAF.  L,  SECT.  II.]      THE   SINKING   OF  NEUTRAL   SHIPS.  313 

7.30  that  morning,  and  the  crew  were  given  half  an  hour  to  leave  and 
that  there  was  no  loss  of  life.  It  was  apparently  the  intention  of  the 
Russians  to  put  the  whole  of  the  crew,  numbering  some  60  persons, 
on  board  the  Tsinan,  but  after  one  boatload,  consisting  of  21  Lascars, 
had  been  sent  from  the  Rossia,  the  signal  to  draw  off  was  given  from 
the  Admiral's  vessel.  The  No.  1  Lascar,  a  quartermaster  who  speaks 
a  little  English,  said  that  the  Russians  gave  them  nothing  to  eat  and 
drink  but  bread  and  water.  The  officer  stated  that  the  number  of 
small  Japanese  coasters  they  had  sunk  was  beyond  counting,  and  that 
the  timber  with  which  the  sea  was  littered — we  sighted  quite  400  pieces 
between  the  hours  of  10  and  2 — was  the  deck  cargo  of  these  vessels. 
He  added  that  a  British  steamship,  the  Cheltenham,  and  a  German 
vessel,  had  been  sent  to  Vladivostock  with  prize  crews  on  board.  The 
Japanese  vessel,  which  was  alongside  one  of  the  cruisers  when  we  were 
being  examined,  had  disappeared  when  we  left.  We  were  ordered  to 
wait  until  the  Russians  were  out  of  sight,  but  I  subsequently,  that 
is,  about  seven  o'clock,  observed  them  going  slowly  in  the  direction  of 
Rock  Island  Light.  I  am  of  the  opinion  that  they  had  not  much  coal, 
although  the  officer  asserted  that  they  had  plenty." 

The  following  particulars  were  gathered  from  the  statement 
made  by  an  Indian,  one  of  the  crew  of  the  British  S.  S.  Knight 
Commander,  sunk  on  the  24th  inst.  by  Eussian  warships  in  the 
offing  of  Idzu : 

At  4  a.m.  on  the  14th,  the  Knight  Commander  met  the  Russian 
warships,  which,  however,  were  at  first  undistinguishable  because  of  a 
fog.  At  5  a.m.,  we  were  ordered  to  stop;  which  order  was  enforced 
by  two  blank  shots,  as  the  steamer  still  continued  moving.  Another 
shot  was  fired,  and  she  stopped. 

After  we  had  stopped,  a  boat  was  lowered  from  the  man-of-war, 
manned  by  a  number  of  bluejackets,  two  officers  included,  and  rowed 
to  us.  The  officers  inspected  the  ship's  papers,  unpacked  a  few  packages 
of  the  cargo,  and  leaving  two  signallers  behind,  quitted  the  steamer, 
taking  the  master  with  them. 

Shortly  afterwards  the  master  came  back,  and  ordered  the  crew  to 
quit  the  steamer  at  ten  minutes'  notice. 

Great  confusion  took  place,  owing  to  the  unexpected  shortness  of 
the  period  granted.  The  crew  were  placed  on  board  two  Russian  men- 
of-war. 

Then  the  smallest  of  these  warships  slowly  approached  the  Knight 
Commander,  and  fired  at  her  engine,  and  with  another  shot  sunk  her 
within  five  minutes. 


314  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

We  were  then  driven  into  a  cabin  below  decks,  where  seven  Japanese 
were  found,  separately  confined.  They  were  apparently  in  good  health, 
but  not  well  fed;  to  which  privation  we  also  were  subjected,  for  noth- 
ing was  given  us  to  eat  till  past  2  p.m.,  when  tea,  and  one  biscuit  each 
were  sent  in. 

Between  3  and  4  p.m.  the  same  day,  we  saw  two  Japanese  sailing 
vessels  sunk  by  the  Russian  warships.  After  4  p.m.,  we  were  trans- 
ferred to  the  British  S.  S.  Tsinan,  where  we  had  a  hearty  meal. 

The  Knight  Commander,  after  her  departure  from  New  York,  called 
at  Algeria,  Port  Said,  Singapore,  Manila  and  Shanghai.  The  cargo 
on  board  seems  to  have  consisted  chiefly  of  a  railway  plant  and  ma- 
chinery. The  total  number  of  the  crew  was  65,  eleven  of  whom  were 
commissioned. 

The  following  information  also  may  be  added: 

Eye-Witnesses  of  the  Sinking  of  the  Knight  Commander. 
The  villagers  of  Nagatsuro,  Minamisaki-mura,  Kamogori,  Izu  prov- 
ince, claim  that  they  witnessed  the  sinking  of  a  steamer,  which  sub- 
sequently proved  to  be  the  British  vessel  Knight  Commander,  by  Rus- 
sian warships  on  the  24th  inst.  About  8  a.m.  on  that  day,  the  Irozaki 
Watch  Tower  reported  that  three  Russian  war-vessels  were  in  view 
at  an  offing  seven  or  eight  miles  from  Irozaki  and  that  they  were  sur- 
rounding a  two-masted  steamer,  which  was  coming  from  the  west.  The 
people  of  Nagatsuro  ran  up  a  neighbouring  hill  to  get  a  view  of  the 
Russian  raiders  and  their  victim,  and  on  arriving  at  the  top  saw  before 
them  a  merchantman,  of  about  4000  tons  displacement,  surrounded  by 
three  large  war-vessels,  one  on  her  starboard  side  and  the  remaining  two 
on  her  port  side.  Three  shots  were  fired  at  the  unfortunate  vessel, 
which  sank  shortly  afterwards. 

The  Release  of  the  Crew  of  the  Knight  Commander. 

At  1  a.m.,  Aug.  10th,  1904,  the  following  telegram  came  in: 
The  Governor  of  Hokkaido  to  the  Minister  for  Foreign  Affairs. 

The  German  S.  S.  Germanicus  came  into  Muroran  at  9  p.m. 
to-day  from  Vladivostock,  bearing  on  board  more  than  60  per- 
sons, including  the  crews  of  the  British  S.  S.  Knight  Com- 
mander, the  German  S.  S.  Thea,  the  sailing  ships  Kiho  Maru, 
Hokusei  Maru,  Zizai  Maru,  Fukujin  Maru,  all  sunk  by  Rus- 
sian men-of-war. 

On  August  11th,  the  British  Vice-Consul  Forster  at  Hako- 


CHAP.  I.,  SECT.  II.]      THE   SINKING   OF  NEUTRAL   SHIPS.  315 

date  visited  Muroran  to  make  arrangements  for  the  welfare  of 
the  released  crew  of  the  British  steamer.  The  British  Minister 
to  Japan  fully  appreciated  the  sincere  assistance  rendered  to 
him  by  our  local  government  on  the  occasion  of  the  visit. 

The  sinking  of  the  Knight  Commander  awakened  general  in- 
dignation among  the  English  public.  The  following  report  con- 
tains the  substance  of  what  the  Marquis  of  Lansdowne  gave  in 
the  House  of  Lords,  and  Mr.  Balfour  in  the  House  of  Com- 
mons, in  answer  to  a  question  bearing  on  the  incident: 

London,  July  28. — In  the  course  of  a  statement  in  the  House  of 
Lords  on  the  Knight  Commander  incident,  Lord  Lansdowne,  the  For- 
eign Minister,  said: 

"  The  examination  of  the  cargo  of  the  Knight  Commander  appears 
to  have  been  very  perfunctory,"  and  he  added :  "  Under  these  circum- 
stances the  Government  could  come  to  no  other  conclusion  than  that 
a  very  serious  breach  of  International  Law  had  been  committed  by  the 
raptors  of  the  Knight  Commander.  Under  no  hypothesis  can  the  Gov- 
ernment conceive  that  a  neutral  ship  could  be  sunk  on  the  mere  fiat 
of  a  cruiser's  commanding  officer,  who  assumed  that  the  cargo  of  the 
vessel  included  articles  which  were  contraband  of  war. 

"Therefore,  I  do  not  suppose  that  the  Russian  Government  will 
hesitate  to  disavow  the  conduct  of  the  persons  by  whom  this  outrage 
— for  it  was  an  outrage,  if  the  facts  are  as  stated — was  committed." 

Lord  Lansdowne,  in  conclusion,  said :  "  We  considered  it  to  be  our 
duty  to  lodge  a  strong  protest  against  the  conduct  of  these  Russian 
ships.  We  accompanied  the  protest  with  a  request  that  orders  be  is- 
sued to  prevent  a  recurrence  of  similar  incidents,  and  we  demanded  the 
release  of  the  Knight  Commander's  British  crew,  who  were  taken 
to  Vladivostock.  The  manner  in  which  the  Russian-  Government  has 
dealt  with  the  representations  we  had  already  felt  it  our  duty  to  make, 
in  regard  to  other  cases,  justifies  the  hope  that  the  representations  we 
now  make  will  not  be  in  vain." 

In  the  Commons  to-day,  Premier  Balfour,  confirming  the  announce- 
ment made  in  these  despatches,  said  the  acute  stage  of  the  Red  Sea  in- 
cidents had  passed  and  that  the  Russian  volunteer  fleet  vessels  would 
be  withdrawn.  He  laid  down  the  British  view  that  no  belligerent 
warship  could  issue  from  the  Black  Sea,  and  that  the  volunteer  fleet 
vessels,  in  issuing  therefrom,  if  they  took  belligerent  action,  had  no 
right  to  issue  or  to  take  such  action. 

The  strongest  possible  exception  had  been  taken  to  the  seizure  of 


316  LAWS   OF  NAVAL   WARFARE.  [PART  III. 

the  Malacca  on  the  above  ground,  the  Premier  added.  The  Russian 
Government  had  met  the  British  contention  in  regard  to  this  par- 
ticular incident. 

As  to  the  Knight  Commander  case,  the  Government  had  earnestly 
and  persistently  protested  that  the  sinking  of  that  vessel  was  contrary 
to  the  accepted  practice  of  nations. 

Mr.  Balfour  assumed  a  serious  tone  as  he  referred  to  the  Knight  Com- 
mander. "  There  are,  I  am  sorry  to  say,"  said  the  Premier,  "  other 
questions,  not  connected  with  these  incidents  at  all,  which  must  cause 
some  discussion  between  the  two  governments,  and,  like  all  discussions 
between  governments,  there  may  be  legitimate  cause  for  anxiety.  We 
hold  that  it  is  not  proper,  on  the  authority  of  the  captain  of  a  cruiser, 
to  take  goods  alleged  to  be  contraband  of  war  from  a  merchant  ship, 
without  trial." 

This  statement  of  the  Premier  was  greeted  with  an  outburst  of 
cheers. 

"  The  proper,  course,"  continued  Mr.  Balfour,  "  according  to  interna- 
tional practice,  is  that  any  ship  reasonably  suspected  of  carrying  con- 
traband of  war  should  be  taken  by  the  belligerent  to  one  of  its  own 
ports  and  its  trial  should  take  place  before  the  Prize  Court  by  which 
the  case  is  to  be  determined." 

The  Premier  continued :  "  More  serious  than  the  others  is  the  case 
of  the  Knight  Commander.  If,  as  our  information  leads  us  to  fearr 
she  was  sunk  by  a  cruiser  of  the  Vladivostock  Squadron,  on  the  ground' 
that  she  carried  contraband  of  war,  in  our  view  it  is  entirely  con- 
trary to  the  practice  of  nations  in  war  time,  and  we  have  earnestly 
pressed  our  views  on  the  Russian  Government.  We  are  under  a  strong 
impression  that  when  the  case  is  brought,  as  it  has  been  brought  by 
us,  before  the  Russian  Government,  they  will  give  such  orders  as  to 
prevent  a  recurrence  of  that  character.  I  feel  confident  that  this  will 
be  the  case." 

In  conclusion  Mr.  Balfour  said :  "  I  cannot  help  feeling  that  there  is 
some  misapprehension  regarding  the  duty  incumbent  on  neutrals.  I 
have  so  far  only  stated  what  we  believe  to  be  the  duties  and  ob- 
ligations of  belligerents,  and  these  duties,  to  the  best  of  our  ability,, 
we  mean  to  see  carried  into  effect;  but  the  belligerent  of  to-day  is 
the  neutral  of  to-morrow.  There  are  duties  incumbent  on  neutrals 
which  must  be  borne  in  mind  by  the  ship-owners  of  the  country.  It 
is  undoubtedly  the  duty  of  a  captain  of  a  neutral  ship  to  stop  when 
summoned  to  stop  by  a  cruiser  of  a  belligerent,  and  to  allow,  with- 
out protest,  his  papers  to  be  examined.  That  obligation  on  neutrals 
we  have  systematically,  consistently  and  sternly  enforced  when  we  have 
been  belligerents,  and  it  would  not  become  us  to  minimise  that  duty.'* 


CHAP.  I.,  SECT.  II.]      THE   SINKING   OF   NEUTRAL   SHIPS.  317 

In  reply  to  a  question  regarding  the  seizures  in  the  Red  Sea,  Mr. 
Balfour  said  that  if  any  damage  had  been  done,  the  claims  for  compen- 
sation would  not  be  affected  by  the  Anglo-Russian  arrangement. 

Serious  discussions  by  authoritative  scholars  bearing  on  the 
incident  make  almost  a  volume,  which,  however,  have  been 
entirely  omitted  in  the  present  work.  The  author's  personal 
opinion  on  the  incident  will  be  given  later  on,  where  the  legal 
questions  on  cases  concerning  the  sinking  of  vessels  are  to  be 
dealt  with. 

II.     The  Sinking  of  the  German  S.  8.  Thea. 

As  above  mentioned,  the  Vladivostock  Squadron  sank  the 
German  S.  S.  Thea  in  their  fourth  attack. 

Eegarding  the  sinking  of  the  Thea  the  following  narration 
by  the  crew  contains  the  fullest  particulars :  * 

The  Thea  (1613  tons  gross),  having  been  chartered  by  the  Hok- 
kaido Sangyo  Kaisha  ( an  industrial  concern ) ,  left  Otaru  for  Shimo- 
noseki  on  July  22.  While  sailing  off  Shimagazaki,  Boshu,  on  the  25th 
at  2  a.m.,  she  sighted  numerous  lights  in  the  offing  and  heard  (the 
sound  of)  the  discharge  of  a  gun.  She  could  not  make  out  the  na- 
tionality of  the  vessel,  which  signalled  to  her,  but  presuming  the  sig- 
nal to  be  an  order  to  stop  she  cast  anchor.  Shortly  afterwards  a  boat 
manned  by  two  Russian  officers  and  20  bluejackets  arrived,  and  the 
officers,  after  talking  with  the  captain,  received  the  ship's  papers. 
The  crew  of  the  steamer  were  ordered  to  proceed  on  board  the  war- 
ship and  the  Russians  then  left.  Several  hours  were  spent  by  the  crew 
in  making  preparations  to  leave  the  steamer.  At  7.30  a.m.  the  Rus- 
sian officers  and  bluejackets  again  returned  to  the  vessel  and  ordered 
the  crew  to  leave  the  ship  at  once.  The  boats  were  lowered  in  haste, 
but  no  sooner  had  they  put  off  from  the  steamer,  than  an  explosion 
occurred  in  the  engine  room.  As  this,  however,  did  not  sink  the  ves- 
sel, the  Russians  applied  another  explosive,  and  the  next  moment  a 
violent  explosion  occurred,  a  huge  column  of  steam  rising  from  the 
engine  room.  Still  the  vessel  remained  floating,  and  the  Russians, 
becoming  impatient,  fired  some  60  shots  into  her,  which  sent  her 
to  the  bottom.  The  crew  of  the  Thea  were  then  taken  on  board  one 
of  the  Russian  warships.     The  Japanese  were  separated  from  the  for- 

1  This  is  what  the  Jiji's  Hakodate  correspondent  learned  from  the  crew  of  the  ill- 
fated  German  steamer  Thea,  who  had  been  brought  back  from  Vladivostock  by  the 
German  steamer  Germanicus. 


318  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

eigners,  and  as  the  former  were  imprisoned  thereafter,  nothing  is 
known  by  them  of  the  subsequent  movements  of  the  Russians.  The 
ship  duly  arrived  at  Vladivostock,  and  the  Japanese  were  landed  on 
the  2nd.  They  were  confined  in  the  upper  portion  of  a  prison-like 
house  for  four  days.  On  the  6th,  the  prisoners  were  informed  that 
they  would  be  sent  back  to  Japan  by  a  German  steamer  on  the  fol- 
lowing day.  The  promise  was  carried  out,  but  as  they  were  kept 
below  deck  for  four  hours  after  their  departure  from  Vladivostock, 
they  know  nothing  about  that  port.  At  the  time  of  their  departure 
from  the  Thea  they  took  their  money  and  papers  with  them,  but  these 
were  afterwards  discovered  by  the  Russians,  who  searched  the  men, 
and  were  thrown  into  the  sea.  The  Russian  vessel  that  sank  the  Thea 
was  the  Rurik.  The  Thea  had  a  crew  of  24  on  board.  Other  ships 
sunk  by  the  Russians,  were  the  sailing  vessel  Jizai  Maru  (crew,  10; 
place,  Onmae-zaki ;  date,  24th  at  2  p.m. ) ,  the  sailing  vessel  Kihinyo 
Maru  (crew,  10;  place,  45  miles  east  of  Esashi),  the  sailing  vessel  Fuku- 
nari  Maru  (crew,  7;  place,  14  miles  off  Onmae-zaki;  date,  24th  at  2 
p.m.),  the  sailing  vessel  Hokusei  Maru  (crew,  10;  place,  off  Esashi; 
date,  20th),  and  a  few  other  vessels. 

The  following  decision  was  given  by  the  Russian  Prize  Court 
at  Vladivostock : 

Tossische  Zeitung,  15  August,  1904. 

Die  Entscheidung  in  der  Thea — Angelegenheit.  Kiel,  14  August. 
(Eig.  Ber.)  Der  Rederei  des  Dampfers  Thea,  jlen  Herren  Diederischen, 
Jebsen  u,  Co.  ist  nunmehr  durch  Vermittelung  des  Answartigen  Amts 
die  Entscheidung  des  Prisengerichts  Wladiwostok  vom  27,  juli  alten 
Stils  mitgeteilt;  das  Aktenstiick  lantet  in  Uebersetzung  aus  der  fran- 
zosischen  Uebersetzung : 

Noch  Prufung  der  Angelegenheit  des  dentschen  Dampfers  Thea, 
der  am  12.  Juli  in  der  Nahe  des  Eingangs  des  Golfs  von  Tokio  durch 
eine  Abteilung  russischer  Kreuzer  angehalten  und  versenkt  ist,  erkennt 
das  Gericht. 

( 1 )  dass  der  Dampfer  Thea  ordnungsgemass  angehalten  ist  in 
Gemassheit  der  Artikel  2,  3,  15,  16  und  17  des  Reglements  uber  die 
Seeprisen, 

(2)  dass  es  vollkommen  festgestellt  ist,  dass  der  Dampfer  Thea 
fur  die  Zeit  des  Krieges  Eigentum  des  Feindes  war,  weil  nach  dem 
Befrachtungsvertrage  des  Schiffes  dieses  fur  neun  Monate  vom  12. 
Marz  d.  J.  ab  durch  die  Japanische  Kompagnie  Hokoi  Santschis  Hossi 
Raisi  gechartert  war,  in  deren  Besitz  es  sich  befand,  indem  es  regel- 
massig   Kiistenschiffahrt   zwichen    den   japanischen    Hafen   trieb,    dabei 


CHAP.  I.,  SECT.  II.]      THE    SINKING   OF   NEUTRAL   SHIPS.  319' 

von  alien  Privilegien  Vorteil  habend,  die  nur  den  japanischen  Fahrzen- 
gen  zukommen. 

(3)  dass  der  Dampfer  Thea,  da  er  seinen  neutralen  Charakter 
verloren,  der  Konfiskation  schuldig  ist  in  Gemassheit  des  Art.  10  des 
obenerwahnten  Reglements, 

(4)  dass  die  ganze  Landung  des  besagten  Dampfers,  bestehend 
aus,  Diinger  und  Fischol,  da  sie  Eigentum  des  Feindes  war,  der  Kon- 
fiskation  schuldig   ist, 

(5)  dass  infolgendessen,  was  vorausgeht,  der  besagte  Dampfer  und 
die  Ladung  als  gute  Prise  anerkannt  werden. 

Gegen  disse  Entsehieidung  ist  die  Appellationsklage  beim  Prisen- 
gericht  Wladiwostok  innerhalb  Monatsfrist  enzureichen.  Beim  Aus- 
bruch  des  Krieges  wurde  in  Japan  ein  Gesetz  verkiindet,  wonach  alien 
Schiffen,  gleichgiiltig  ab  japanischer  oder  fremder  Nationalitat,  die- 
Kiistenschiffahrt  in  alien  Hafen  gestattat  wurde.  Die  japanishe  rhe- 
derei-Gesellschaft, .  welche  die  Thea  gechartert,  heisst  mit  ihrem  rieh- 
tigen  Namen  "  Hokkai  Sanghe  Geichy  Kaisha,"  sie  besitzt  naeh  Lloyds- 
Register  den  Dampfer  Tsukushi  Alaru. 

An  appeal  was  lodged  by  the  owner  of  the  steamship  to  the 
Supreme  Prize  Court  at  St.  Petersburg,  which  gave  the  follow- 
ing decision  on  the  case: 

Decision   of  the  St.   Petersburg  Prize   Court. 

A  Wolff  telegram  states: 

On  December  3,  the  High  Prize  Court  at  St.  Petersburg  examined 
the  appeals  against  the  judgments  delivered  by  the  Vladivostock  Prize 
Court  in  the  case  of  the  destruction  of  the  German  steamer  Thea  and 
of  the  seizure  of  the  cargo  carried  by  the  British  steamer  Arabia. 

The  counsel  representing  the  owners  of  the  Thea  pleaded  that  the- 
sinking  of  that  vessel  by  the  Russian  warships  was  due  to  a  mis- 
understanding. He  stated  that  the  Russian  naval  officer  who  boarded 
the  German  steamer,  concluded  from  the  statement  made  in  German 
by  her  captain,  that  the  ship's  cargo,  consisting  of  fish  oil  and  fish 
manure,  came  under  the  category  of  fish,  and  that  the  officer  acted 
according  to  the  erroneous  conclusion. 

On  the  other  hand,  the  Vladivostock  Prize  Court  judged  the  sink- 
ing of  the  steamer  to  be  legitimate  on  the  ground  that  the  participa- 
tion of  the  steamer  in  the  coasting  trade  in  the  enemy's  country  deprived 
her  of  the  privileges  of  a  neutral  ship. 

The  High  Prize  Court  adjudged  the  sinking  of  the  steamer  to  be 
illegal,  and  therefore  quashed  the  judgment  delivered  by  the  Vladivos- 


320  LAWS   OF   NAVAL   WARFARE.  [PART  III. 

tock    Prize    Court.      In    consequence    of    this    decision    the   ship-owners 
will  lodge  a  claim  of  700,000  marks  (about  350,000  yen)   as  damages. 

The  Prize  Court  also  annulled  the  judgment  delivered  by  the 
Vladivostock  Prize  Court  in  the  case  of  the  confiscation  of  the  cargo 
carried  by  the  Arabia. 

III.     The  Hipsang  Incident. 

The  steamer  Hipsang  was  fired  on  and  torpedoed  by  Knssian 
torpedo-boat  destroyer  No.  7,  in  North  Latitude  38°  55'  30" 
and  East  Longitude  120°  57'  30",  on  July  16,  1904.  Captain 
Bradley  is  an  experienced  seaman,  and  as  he  had  been  in  com- 
mand of  merchantmen  during  the  Franco-Chinese,  China- 
Japan,  and  Russo-Japanese  wars,  it  will  be  presumed  that  he 
was  well  acquainted  with  the  established  usages  of  war  with 
regard  to  belligerents  and  neutral  ships.  The  Hipsang  had 
been  carrying  passengers  consisting  of  a  Russian  and  22  Chi- 
nese and  there  were  no  Japanese  or  contraband  of  war  on 
board. 

When  she  was  first  challenged  by  the  Russian  vessel,  she 
stopped  and  steamed  backward,  behaving  properly  in  this  and 
other  matters.  When  she  was  again  challenged,  she  disclosed 
her  nationality,  and  when  it  became  clear  that  she  would  be 
lost,  the  captain  and  crew  did  their  best  to  save  the  passengers, 
and  only  one  life  was  lost.  Prior  to  sinking,  she  had  a  full 
complement  and  was  perfectly  seaworthy. 

The  following  is  the  finding  of  the  Naval  Court,  as  pub- 
lished in  the  Japan  Times: 

The  amazing  story  of  the  Hipsang  has  now  been  made  fully  pub- 
lic, says  the  North  China  Daily  News.  The  finding  of  the  Naval  Court 
of  Inquiry  was  delivered  on  the  23rd  inst.  and  is  strongly  worded.  It 
is  fair  to  remember  that  the  Court  could  necessarily  hear  one  side 
only,  but  the  evidence  given  seems  of  an  overwhelming  nature,  and 
in  the  language  of  the  President,  the  firing  of  a  torpedo  makes  it  im- 
possible to  regard  the  Russian  destroyer's  action  as  a  mistake.  The 
Court  endeavoured,  but  without  success,  to  ascertain  the  name  of  the 
destroyer.  It  transpired,  however,  that  she  was  the  Raztoropni,  a 
vessel  of  the  same  tonnage  but  ten  feet  longer  than  the  Ryeshitelni  of 
Chefoo  fame. 


CHAP.  I.,  SECT.  II.]      THE   SINKING   OF   NEUTRAL   SHIPS.  321 

The   finding   of   the    Court    is    as   follows: 

The  Hipsang  was  a  steam  vessel,  schooner  rigged,  of  1040  tons 
register,  official  number  112,720,  built  at  Stockton-on-Tees  in  1899  and 
belonging  to  the   port  of  London. 

It  appears  from  the  evidence  given  before  this  Court  that  she 
sailed  from  Niuchwang  on  July  15th,  1904,  bound  for  Chefoo  and 
Canton,  with  a  cargo  of  beans,  etc.,  and  a  crew  of  07  hands,  as  well 
as  one  European  passenger  and  22  Chinese  passengers. 

It  appears  that  all  went  well  until  the  steamer  reached  Latitude 
38°  55'  30"  N.  and  Longitude  120°  57'  30"  E.,  when,  the  captain, 
being  on  deck  with  the  second  officer  about  4.15  a.m.  on  July  16th,  a 
Russian  destroyer,  name  unknown,  but  numbered  7,  came  up  to  the 
Hipsang  and  fired  a  shot  at  her,  and  although  the  engines  were  at  once 
stopped  and  put  full  speed  astern,  the  destroyer  continued  firing  and 
striking  the  ship,  killing  and  maiming  some  of  the  passengers. 

It  is  evident  that  the  Hipsang  had  her  lights  alight,  and  after  the 
first  shot  her  colours  were  immediately  hoisted,  but  notwithstanding 
this,  the  destroyer  fired  a  torpedo  and  struck  the  vessel,  thereby  caus- 
ing her  to  sink  within  the  space  of  half  an  hour,  viz.,  at  4.40  a.m. 
It  is  evident  that  there  was  sufficient  light  to  see  both  the  class  of 
the  vessel,  the  nationality,  and  whether  the  steamer  had  stopped,  day 
having  broken  and  there  being  no  fog  in  the  vicinity.  Boats  were 
then  lowered  and  the  destroyer  came  alongside  and  assisted  to  save 
life,  but  the  crew  and  passengers  w7ere  kept  prisoners  until  their  re- 
lease on  August  second. 

The  Court,  having  regard  to  the  circumstances  above  stated,  finds 
as  follows:  That  the  steamship  Hipsang  was  sunk  by  being  shelled  and 
torpedoed  by  a  Russian  torpedo-boat  destroyer,  No.  7,  name  unknown, 
on  July  16th,  1904.  Position  approximately  Latitude  38°  55'  30"  N., 
Longitude  120°  57'  30"  E. 

That  the  master  was  a  fully  experienced  officer,  and,  having  been 
in  command  during  the  Franco-Chinese  War,  the  China-Japanese  War 
and  also  during  the  present  war,  was  fully  cognizant  of  the  ordinary 
established  usages  of  war  with  regard  to  belligerents  and  neutral 
vessels. 

That  there  was  no  contraband  on  board  the  Hipsang,  and  the  only 
passengers  were  one  Russian  merchant,  and  22  Chinese.  There  were  no 
Japanese  on  board. 

That  the  master  appears  to  have  navigated  his  vessel  in  a  sea- 
manlike and  proper  manner,  and  to  have  acted  in  a  correct  manner 
when  challenged  by  the  Russian  destroyer,  inasmuch  as  he  stopped, 
ordered  full  speed  astern,  and  when  the  way  was  off  the  ship,  stopped 
the   engines;    and    further,    when   he    was   challenged,   he   at  once   made 


322  LAWS   OF  NAVAL   WARFARE.  [PART  III. 


known  his  nationality.  When  a  casualty  was  inevitable,  the  master 
appears  to  have  done  all  in  his  power  to  save  life. 

That  the  officers  and  crew  appear  to  have  conducted  themselves 
properly  and  to  have  carried  out  their  duties  to  the  last  moment,  and 
to  have  used  their  utmost  exertions  to  save  the  lives  of  the  passen- 
gers, the  loss  of  life  from  drowning  being  reduced  to  one  passenger. 

That  the  vessel  appears  to  have  been  sufficiently  manned  and  sea- 
worthy at  the  time  of  the  loss. 

That  the  Court  desires  especially  to  direct  the  attention  of  the 
Board  of  Trade  and  the  Foreign  Office  to  the  fact  that  the  steamship 
Eipsang  was  proceeding  with  due  caution  between  Niuchwang  and 
Chefoo,  on  a  correct  course,  and  that  without  any  just  cause  or  reason 
was  sunk  without  any  warning,  by  being  torpedoed,  and  that  the  loss 
of  life  was  due  to  shell  fire  prior  to  the  act  of  torpedoing  the  vessel, 
and  that  these  acts  were  done  by  a  Russian  torpedo-boat  destroyer, 
name  unknown,  but  numbered  7. 

It  is  noteworthy  that  in  contrast  to  the  Eussian  warship's 
violence,  the  Yugiri,  one  of  the  Japanese  torpedo-boat  destroy- 
ers, was  very  kind  to  the  crew  of  this  unfortunate  steamship 
Hipsang,  as  will  be  seen  from  its  master's  letter  to  the  North 
China  Daily  News'. 

Having  been  released  from  confinement  at  Port  Arthur  by  the  Rus- 
sian authorities,  and  having  walked  over  to  Pigeon  Bay,  a  junk  was 
chartered  by  our  saloon  passenger  for  the  sum  of  350  rubles  to  take 
himself  and  us  from  Pigeon  Bay  to  Chefoo,  the  junk  people  agreeing 
for  a  further  sum  of  48  rubles  to  allow  24  of  the  Chinese  members 
of  the  crew  to  accompany  us  in  the  junk.  So  at  about  4  p.m.  on 
the  2nd  of  August,  1904,  we  sailed  out  of  Pigeon  Bay  with  a  fair 
land  breeze,  having  for  stores  for  the  voyage  (which  might  easily  have 
been  one  of  many  days)  one  small  white  loaf  of  bread  and  two  pieces 
of  black,  left  over  from  our  evening  meal  of  the  day  before,  a  remnant 
fcf  cheese,  some  tea  in  a  bottle,  and  two  or  three  pounds  of  sugar. 
Fortunately  the  junk  had  a  certain  amount  of  millet  in  one  of  her 
holds  and  a  fair  supply  of  drinking  water  in  a  big  tub  lashed  on  her 
forepart. 

After  passing  fairly  close  to  a  floating  mine,  we,  some  little  time 
after  leaving  the  bay,  sighted  four  Japanese  torpedo-boat  destroyers 
steaming  in  our  direction,  and  as  one  of  these  vessels  directed  her 
course  straight  towards  our  junk,  the  junk's  sails  were  lowered  and 
we  awaited  her  approach.  Steaming  close  up  to  us,  and  receiving  the 
information  that  we  were  members  of  the  crew  of  the  Hipsang,  heav- 


CHAP.  I.,  SECT.  II.]      THE   SINKING   OF   NEUTRAL   SHIPS.  323 

ing  lines  were  thrown  to  us,  and  the  junk  hauled  alongside  the  de- 
stroyer. We  Europeans  were  then,  by  the  request  of  the  Lieut. - 
Commander  of  the  Yugiri,  invited  to  come  on  board  the  destroyer  by 
Mr.  Kyosuke  Eto,  a  staff  officer  of  the  Imperial  Japanese  Navy;  and 
we  were  then  invited  to  sit  down  at  a  table,  which  was  soon  loaded 
with  delicacies.  Lieut.-Commander  S.  Kagiwada  having  then  heard 
our  account  of  the  loss  of  the  Hipsang  and  our  sojourn  at  Port  Arthur, 
asked  us  if  we  were  in  any  need  of  food  or  water  to  take  us  across 
to  Chefoo;  and  gathering  that  we  did  stand  in  need  of  bread,  he  and 
his  officers  most  generously  gave  us  a  large  case  of  ship's  biscuits,  seven 
tins  of  corned  beef,  two  tins  of  jam,  a  bottle  of  Worcester  sauce,  about 
a  dozen  quart  bottles  of  beer  and  many  bottles  of  Hirano  water,  a 
packet  of  candles,  two  large  blankets,  handkerchiefs  and  socks,  etc., 
etc.,  absolutely  refusing  to  heed  our  protestations  when  we  begged 
them  not  to  deplete  their  stores  and  only  to  give  us  the  biscuits,  the 
officers  laughingly  refusing  to  listen  to  us,  and  ordering  the  Japanese 
sailors  to  put  their  gifts  on  board  the  junk.  Then,  after  expressing 
their  sorrow  that  they  could  not  tow  us  over  to  Chefoo,  as  their  ves- 
sel was  on  patrol  duty  off  the  Liaotiehshang  Promontory,  and  they 
could  not  leave  their  station,  Lieut.-Commander  S.  Kagiwada  and  his 
officers  gave  us  a  really  hearty  send-off,  with  many  a  handshake,  wish- 
ing us  good  luck  and  a  safe  passage  across  to  Chefoo,  we  giving  them 
a  hearty  three  cheers  as  we  parted  company. 

The  next  day,  the  wind  having  headed  during  the  night,  we  found 
ourselves  to  the  westward  of  the  Miaotao  Islands,  and  unable  to  make 
any  material  progress  towards  Chefoo;  so  in  the  afternoon  (as  the 
flood  tide  was  setting  the  junk  bodily  to  the  westward)  we  let  the 
anchor  down    and   remained. 

The  next  day,  the  wind  being  still  a  head  wind  to  Chefoo,  we  got 
under  way  and  stood  down  for  Howki,  so  as  to  get  in  the  track 
of  ships  coming  from  Taku  Bar,  and  were  fortunate  enough  to  attract 
the  attention  of  the  officer  on  the  bridge  of  the  steamer  Siilberg;  being 
taken   on   board   that   vessel   and  brought   quickly   on  to    Chefoo. 

On  the  12th  of  August,  1904,  the  Jardin  Madison  Company 
sent  a  letter  to  Consul-General  Adagiri,  thanking  him  for  the 
kindness  of  the  Japanese  Navy. 

IV.  Disasters  to  Merchantmen  Inflicted  by  Descent  of  the 
Baltic  Fleet. 

The  Baltic  Fleet  in  its  descent  on  the  Far  East  occasioned 
more  than  one  vivid  scene  when  viewed  from  the  standpoint 


324  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

of  International  Law.     But  here  the  treatment  will  be  limited 
to  cases  of  the  sinking  of  vessels  in  the  seas  of  the  Far  East. 

(I)     The  Sinking  of  the  St.  Kilda. 

On  the  14th  of  June,  1905,  the  Dutch  mail  steamer  Flores 
reported  that  at  3  p.m.  on  June  11th,  when  off  Diamond  Point, 
North  Sumatra,  she  was  signalled  by  the  Kussian  man-of-war 
Dnieper,  which  transferred  to  her  the  persons  and  articles, 
taken  from  the  British  steamer  St.  Kilda.  According  to  the 
statement  of  the  Chinese  on  board  the  boat,  the  St.  Kilda 
left  Hongkong  at  10  a.m.  on  June  4th,  with  mail  for  Japan 
from  Hongkong  and  Singapore.  At  4  p.m.  the  same  day  she 
was  sighted  by  the  Dnieper  and  ordered  to  stop,  which  order 
she  obeyed.  Then  the  Russians  closely  examined  her  papers 
and  cargo,  which  principally  consisted  of  rice  and  provisions, 
and  made  the  crew  leave  the  ship.  After  a  quantity  of  pro- 
visions had  been  transferred  to  the  Russian  man-of-war,  which 
work  occupied  the  whole  night,  the  British  steamer  was  fired 
on  and  sunk  at  9  a.m.  on  June  5th.  Some  of  the  captured 
mails  for  Japan  are  believed  to  have  been  destroyed  or  muti- 
lated. The  captain  and  other  European  officers  of  the  British 
steamer  are  still  detained  on  the  Russian  man-of-war,  and  will 
be  sent  to  Port  Said. 

The  impression  made  upon  the  British  by  the  sinking  of 
the  St.  Kilda  was  really  serious,  and  the  protest  addressed  to 
the  Russian  Government  by  them  had  the  result  reported 
below : 

The  press  reports  regarding  the  sinking  of  the  St.  Kilda 
by  the  Dnieper  that  the  British  Ambassador  to  Russia,  on 
June  18th,  handed  Count  Lamsdorff  a  strong  protest,  accom- 
panied by  a  demand  for  reparation.  The  Russian  Minister  for 
Foreign  Affairs  promised  to  refer  the  matter  to  the  Minister 
of  Marine,  who  had  no  information  from  the  Dnieper,  the 
whereabouts  of  which  was  unknown.  Count  Lamsdorff  added 
that  last  year's  assurances  to  the  British  Government  still 
held  good,  and  concluded  by  remarking  that  these  assurances 


[AP.  I.,  SECT.  II.]      THE   SINKING   OF   NEUTRAL   SHIPS.  325 

id  been  observed  for  nearly  a  year,  and  that  the  present  case 
was  an  isolated  one  probably  due  to  misunderstanding  and  the 
disorganisation  of  Kussian  naval  forces  in  the  Far  East. 

(II)     The  Sinking  of  the  Ikona. 

The  Dutch  steamer  Perlak  which  arrived  at  Singapore  from 
Tansui  on  the  evening  of  June  26,  1905,  brought  the  captain 
and  84  of  the  crew  of  the  British  steamer  Ikona,  and  reports 
that  at  1  p.m.  on  June  19th  she  was  stopped  by  the  Russian 
man-of-war  Terek,  which  transferred  to  her  the  above-men- 
tioned seamen,  then  steamed  in  a  southeasterly  direction,  ap- 
parently towards  Manila. 

The  aforesaid  British  steamer  was  sunk  by  the  Terek  on 
June  5th  about  150  miles  north  of  Hongkong. 

Concerning  mails  on  board  the  Ikona  and  St.  Kilda,  the 
following  report  was  sent  in: 

Sept.    12,   1905. 
Foreign  Department: 

Notification  concerning  mails  on  board  the  St.  Kilda. 

We  have  the  honour  of  informing  you  that  the  cable  package  sent 
from  Singapore  addressed  to  the  Foreign  Department  and  found  miss- 
ing from  the  registered  portion  of  the  mails  on  board  the  St.  Kilda, 
sunk  by  the  Russian  man-of-war,  arrived  here  on  the  30th,  prox.,  on 
board  the  Empress  of  India.  The  transcript  of  the  notification  bearing 
on  the  incident  is  also  forwarded  to  you. 

We  have  referred  to  the  Post  Bureau  particulars  of  name  and  date 
of  the  consignor  of  the  said  missing  article. 

Tokyo  Post  Office. 

( Enclosure. ) 

General  Post  Office,  Hongkong,  21st  June,  1905. 
Sir: 

I  have  the  honour  to  inform  you  that  in  rechecking  the 
registered  portion  of  the  mail  for  Japan  ex  St.  Kilda,  sunk  by  the 
Russian  cruiser  Dnieper,  a  registered  article,  No.  682,  emanating  from 
Singapore  addressed  to  the  Foreign  Office,  Tokyo,  was  found  to  be 
missing,  presumably  abstracted  from  the  bag  by  an  official  on  board 
the  Dnieper.  All  our  registered  bags  had  been  tampered  with,  the 
registered  articles  previously  tied  up  in  bundles  had  been  subjected  to 
examination,  and  then  thrown  back  into  the  bags  loose.     The  article 


326  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

in  question  was  entered  on  the  Hongkong-to-Tokyo  list  at  line   11,  list 
I,  per  S.  S.  St.  Kilda,  of  June  2nd,  1905. 
I  am,  Sir, 

Your  obedient  servant, 

( Signed )     Postmaster-General. 
The  Director-General  of  Posts  and  Telegraphs,  Tokyo. 

Vice-Minister:  AuS-  5>  1905- 

When  the  bags  of  mail  previously  referred  to,  which  were  carried  by 
the  S.  S.  Ikona  and  confiscated  by  the  Russian  wrarship,  were  brought 
to  Miji  on  July  8th  on  board  the  S.  S.  Crudra,  and  examined  at  the 
Yokohama  Post  Office,  the  envelope  and  seal  wrere  found  torn  off  and 
freshly  sealed  by  the  Russian  warship;  four  letters  had  been  subjected 
to  examination,  and  the  bag  of  letters  was  also  unsealed  by  the  Rus- 
sians, leaving,  however,  the  contents  untouched. 

Kenjiro  Den, 

Vice-Minister  of  Communications. 

(III)  The  Destruction  of  the  Old  Hamia. 

According  to  the  information  furnished  by  a  sub-lieutenant 
and  thirteen  other  men  belonging  to  the  Russian  warship  Schou- 
valoff,  made  captives  by  the  Japanese  Army  on  the  17th  inst., 
east  of  Cape  Tsushima,  Sakhalin,  the  British  merchantman  Old 
Hamia,  which  was  seized  by  Russians  off  Formosa  and  was 
headed  towards  Vladivostock  with  a  prize  crew  on  board,  was 
stranded  on  June  2nd,  owing  to  dense  fog,  on  the  east  coast 
of  Urup  Island  in  about  Latitude  45°  51'  N.,  while  passing 
through  the  Etrup  Channel.  The  vessel  was  burned,  and  the 
prize  crew  landed  and  pitched  their  tents.  At  the  scene  of 
the  disaster,  there  remained  two  officers  and  fourteen  bluejack- 
ets who,  according  to  information  sent  in  by  the  Commander- 
in-Chief  of  the  Northern  Squadron,  though  provided  for  one 
month  and  a  half,  will  require  prompt  rescue.  However,  they 
must  expect  help  from  some  local  government,  because  circum- 
stances for  the  time  being  prevent  despatching  a  man-of-war 
for  that  purpose. 

(IV)  The  Sinking  of  the  Tetartos. 

As  the  last  case  of  the  sinking  of  merchantmen,  the  disas- 
trous end  of  the  S.  S.  Tetartos  is  here  fully  narrated. 


CHAP.  I.,  SECT.  II.]      THE   SINKING   OF   NEUTRAL   SHIPS.  327 

Important  Particulars  concerning  the  Tetartos  are  as  follows : 

Owner  of  the  Tetartos. 

Flenburger  Dampfschiff  Gesellschaft,  Germany. 

Agent  of  the  Owner. 

Siemssen  &  Co.,  Hongkong. 

Charterers. 

Osaka   Shosen  Kabushikikaisha,   Osaka. 

Procedure  of  the  Chartering. 

The  steamer  was  chartered  by  Osaka  Shosen  Kabushiki- 
kaisha  in  March,  1904,  and  once  rendered  back  to  the  owner  in 
November  of  the  same  year.  In  April,  1905,  she  was  again 
chartered  by  the  same  company,  on  the  agreement  contained 
in  No.  1  of  the  documents  annexed. 

On  Contraband. 

Eegarding  the  transportation  of  contraband  of  war,  the 
negative  statement  is  contained  in  the  first  supplementary  item 
of  the  charter. 

Eegarding,  however,  the  transportation  of  coal,  rice,  pro- 
visions, timber,  and  other  similar  articles,  the  owner's  consent 
thereto  was  obtained  as  the  supplementary  charter,  No.  2,  indi- 
cates. 

Throughout  the  two  periods  of  the  charter,  the  steamer  was 
directed  mostly  for  the  transportation  of  rice,  sugar,  salt,  tim- 
ber, cement,  other  architectural  materials,  miscellaneous  arti- 
cles, provisions,  etc.,  between  the  Main  Islands  and  Formosa. 
No  disturbance  had  ever  occurred  between  the  owner  and  the 
charterers  concerning  the  character  of  cargo. 

In  May  of  this  year,  when  the  Baltic  Squadron  was  ap- 
proaching the  Far  East,  the  owner  demanded  of  the  charterers 
a  warrant  to  cover  possible  loss  from  the  enemy,  owing  to  the 
presence  on  board  of  any  contraband  of  war.  This  was  accord- 
ingly given  to  the  master,  dated  May  10  (No.  2),  although 
such  a  warrant  was  nothing  more  than  the  duplication  of  what 
had  been  alreadv  settled  on  in  the  charter. 


328  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

As  far  as  the  Tetartos,  or  any  other  chartered  foreign  ship, 
was  concerned,  the  charterers  were  accustomed  to  inform  the 
owner  of  the  ship  of  the  nature  and  volume  of  the  cargo  to  be 
shipped,  previous  to  freighting,  and  no  cargo  was  to  be  freighted 
without  the  master's  express  consent  thereto. 

Scene  of  Disaster. 

The  steamer  was  laden  in  Port  Otaru,  Hokkaido,  with 
sleepers  and  square  timbers  for  Tiensin,  China,  and  left  for 
its  destined  port  on  May  23rd  of  that  year.  While  steaming 
directly  thither,  she  was  sunk  by  a  Kussian  warship,  on  May 
29th,  in  Lat.  36°  N.,  Long.  132°  E.  (Cf.  the  report  of  the 
chief  manager  of  the  steamer  annexed.)  The  cargo  carried 
on  board: 

1.  Sleepers,  23,195  pieces. 

2.  Square  timbers,  1140  pieces. 
(Laden  at  Otaru  for  Tiensin.) 

3.  Consignor,  The  Teshio  Timber  Company. 

4.  Consignee,  Wilson  &  Co.,  Tiensin. 

5.  Freight  fee,  12,000  yen,  altogether. 

The  Master  s  Protest. 

Regarding  the  sinking  of  the  Tetartos,  the  master  of  the 
steamer  lodged  a  protest,  as  contained  in  the  transcript,  No.  5, 
with  the  commander  of  the  Russian  warship. 

Owner  vs.  Charterers. 

On  June  30th  of  this  year,  Iris  &  Co.,  the  agents  of  the 
owner,  referred  the  incident  to  the  charterers,  in  the  docu- 
ment annexed,  No.  6,  to  which  No.  7  was  the  charterers'  an- 
swer. Since  then  no  reference  to  the  matter  has  taken  place 
between  the  parties  concerned.  The  owner  is  going  to  lodge 
against  the  Russian  Government  the  demand  for  compensation 
for  his  losses,  together  with  which  the  charterers'  loss  is  to  be 
demanded. 


CHAP.  I.,  SECT.  II.]      THE   SINKING   OF   NEUTRAL   SHIPS.  329 

Annex  I. 

AGREEMENT. 

Referring  to  the  Charter  Party  of  S.   S.   Tetartos. 

Kobe,  28th  March,  1905. 
It  is  hereby  agreed  and  understood  that  the  owners  allow  the  char- 
terers to  carry  coal,  rice,  provisions,  timber  and  similar  merchandise 
under  the  terms  of  the  above-mentioned  charter  party,  between  ports 
in  Japan  and  China,  also  to  such  ports  in  Korea,  as  have  been  occupied 
by  and  are  under  the  control  of  Japan. 

This  agreement  is  to  be  considered  as  part  of  the  charter  party. 

Dated  Kobe,  28th  March,  1905. 

Both  Parties  Signed. 
Annex  II. 

Osaka,  19th  May,   1905. 
To  the  Captain  and  Owners  of  the  S.  S.  Tetartos. 
Dear  Sirs: 

The  charterers  bind  themselves  not  to  ship  any  contraband  of  war 
on  board  S.  S.  Tetartos,  and  should  the  steamer  be  found  with  con- 
traband of  war  on  board  by  the  men-of-war  of  a  belligerent  power 
during  the  term  of  this  charter,  all  damages  arising  therefrom  shall 
be  made  good  by  the  charterers. 

(Signed)     Osaka  Siiosen  Company,  Ltd., 

Charterers. 

Annex  III. 
The  Report   of   the   Tetartos  Disaster. 

By  Mr.  Tokugoro  Nakahashi,  President  of  the  Osaka  .Shosen  Ka- 
bushiki  Kaisha. 

Leaving  Otaru  on  May  23rd,  and  passing  through  Tsushima  Strait 
in  the  night  of  the  26th,  our  steamer  was  to  be  at  Tiensin  in  one  or 
two  days,  when  on  May  28th,  a  little  after  4  p.m.,  two  streaks  of 
black  smoke  were  sighted  on  the  horizon,  one  of  which  on  nearer 
approach  was  found  to  be  a  man-of-war.  Soon  the  warship,  now 
recognised  as  a  Prussian  by  her  flag,  came  on  the  starboard  side  and 
ordered  our  steamer  to  stop,  which  order  we  obeyed.  The  time  was 
5  p.m.,  and  the  place  about  60  nautical  leagues  S.S.E.  of  the  Shan- 
tung Promontory  Light.  A  boat,  commanded  by  Russian  officers,  was 
rowed  towards  us,  and  held  an  interview  with  the  master,  who  insisted 
that  although  the  cargo  on  board  was  contraband  laden  at  a  bel- 
ligerent port,  no  objection  was  possible  if  the  delivery  was  to  be  to 
neutral  consignees  at  a  neutral  port.  The  officers,  without  giving  any 
answer,   ordered   the   steamer  to   follow  the  Russian   man-of-war,   and 


330  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

quitted  her  after  having  inspected  the  cargo.  We  steamed  west  all 
night,  knowing  nothing  of  our  fate.  The  said  warship  was  the  cruiser 
Leon,  of  about   10,000  tons  displacement,  formerly  the  S.  S.  Smolensk. 

On  the  following  day,  the  29th,  at  7  a.m.,  we  were  once  more  or- 
dered to  stop,  in  Latitude  122°  4'  N.,  and  Longitude  30°  E.,  where  no 
other  Russian  man-of-war  was  to  be  seen. 

Three  Russian  officers  came  aboard  us,  and  ordered  the  crew  to 
leave  the  steamer,  without  granting  even  a  period  of  half  an  hour. 
We,  the  crew,  jumped  into  the  Russian  boat.  This  was  at  8  in  the 
morning.  Soon  after,  the  Russian  warship  fired  three  shots  at  the 
Tetartos,  which  foundered  in  three  hours. 

The  Japanese  part  of  the  crew  was  confined  in  a  cabin  with  a 
capacity  of  eight  men,  the  Germans  in  the  Russian  officers'  cabin, 
and  the  Chinese  in  the  bluejackets'  cabin.  We  were  watched  by  a 
bluejacket,  and  the  hotness  of  temperature  and  coarseness  of  food  were 
absolutely  intolerable  for  human  beings. 

After  having  witnessed  the  Tetartos  sink,  the  Russian  man-of-war 
steamed  south,  at  12.30  p.m. 

Sect.  III.  An  Observation  on  the  Destruction  of  Merchant- 
men.1 

Argument  based  on  the  discrimination  between  ships  to  be 
captured  and  those  to  be  destroyed. 

In  the  time  of  hostilities,  ships  which  may  be  subjected  to 
capture  need  not  be  deemed  always  as  lawful  prizes;  for  some 
of  those  captured  may  possibly  be  released  as  the  result  of  de- 
cisions given  by  the  Prize  Court.  We  should  remember  that 
ships  subjected  to  capture  and  those  subject  to  condemnation 
do  not  always  fall  in  one  and  the  same  category,  so  that  the 
release  of  a  captured  ship  does  not  necessarily  presuppose  the 
unjustifiability  of  the  capture. 

To  cite  a  plain  illustration,  a  ship  carrying  a  small  quantity 
of  contraband  of  war  may  be  lawfully  subjected  to  capture, 
but  if  the  owner  of  the  said  contraband  is  not  the  owner  of 
the  ship,  the  ship  captured  should  be  released.  In  this  case, 
however,  the  capture  should  not  be  considered  as  unlawful  be- 
cause of  the  subsequent  release. 

1  Compare  this  opinion  with  the  opinion  of  Prof.  We3tlake. — See  Westlake's  Inter- 
national Law,  Part  II.,  pp.  318-321. 


■ 


CHAP.  I.,  SECT.  III.]      DESTRUCTION   OF  MERCHANTMEN.  331 

Another  point  to  be  emphasised  is  that  a  ship,  however 
lawfully  it  may  be  subjected  to  capture  or  condemnation,  shall 
not  be  destroyed  unless  under  special  circumstances.  So  that 
it  becomes  an  abuse  to  destroy  a  ship  under  the  pretext  that 
it  is  a  lawful  prize. 

Such  a  mistake  seems  to  have  affected  Kussian  officers  and 
the  Eussian  Prize  Court,  when  they  considered  that  every  ship 
carrying,  for  instance,  "  contraband  despatches,"  or.  "  running 
the  blockade,"  could  be  detained  and  made  a  prize,  which  then 
might  be  disposed  of  in  whatever  way  they  liked,  even  to  de- 
struction. 

According  to  general  principles  of  Prize  Law,  a  prize  is 
first  secured  by  condemnation  which  is  to  be  delivered  by  the 
Prize  Court.  So  destruction  of  merchant  ships  without  fur- 
nishing necessary  conditions  and  taking  necessary  steps  must  be 
illegal. 

Now  a  ship   to  be  legally  subjected  to  detention  may   be 

either  an  enemy's  ship  or  a  neutral  ship,  as  the  table  inserted 

below  will  show : 

C    1.     Enemy  vessel  proper. 
{a)     Enemy  vessels:    J    2.     Neutral  vessel,  having  a  belligerent  char- 
(  acter. 

'  1.  When  carrying  contraband  goods. 

2.  When  carrying  contraband  despatches. 

3.  When  carrying  contraband  persons. 

4.  When  breaking  a  blockade. 

5.  When  found  under  an  enemy's  convoy. 
C.  When  resisting  either  visit  or  search. 

7.  When  under  a  false  flag. 

8.  When  the  ship's  papers  are  incomplete  or 
false. 

Although  a  vessel  corresponding  to  any  article  of  the  table 
may  be  lawfully  subjected  to  capture,  the  Prize  Law  cannot  be 
applied  to  the  same  extent,  for  there  exist  various  shades  of 
sanction,  according  to  the  kinds  of  vessels. 

I.  A  vessel  owned  by  the  enemy,  state  or  subject,  "should 
be  captured,  and  taken  to  the  Prize  Court,"  may  be  destroyed 


(b)     Neutral  vessels 

LIABLE   TO   CAP- 
TURE: 


332  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

if    found    unseaworthy,    and,    of    course,    "  condemned    as    a 
prize."  1 

II.  A  vessel  owned  by  a  neutral  and  under  convoy  of  the 
enemy — "It  should  be  captured"  and  "taken  to  the  Prize 
Court,"  as  an  enemy's  vessel,  and  "  condemned  as  a  prize."  2 

III.  A  vessel  chartered  by  the  enemy's  Government,  even 
though  compelled  thereto  by  coercion — "  It  should  be  cap- 
tured," and  "taken  to  the  Prize  Court,"  as  an  enemy's  vessel, 
and  "  condemned  as  a  prize."  3 

IV.  A  neutral  vessel,  carrying  contraband  goods — "  as  an 
illegal  neutral  vessel  should  be  captured  and  taken  to  the  Prize 
Court,  and  released,  after  having  confiscated  its  cargo,"  or 
"  may  be  condemned  as  a  prize,  both  ship  and  cargo  included."  4 

V.  "  A  neutral  vessel  carrying  contraband  despatches  " — as 
an  illegal  neutral  ship,  "  should  be  captured,  under  any  circum- 
stances, taken  to  the  Prize  Court,  and  may  be  condemned  as  a 
prize."  5 

VI.  "  A  neutral  vessel  carrying  contraband  persons — It 
should  be  captured  as  an  illegal  neutral  vessel,  and  under  any 
circumstances  brought  to  the  Prize  Court  and  condemned  as  a 
prize."  6 

In  this  way,  the  disposition  of  a  vessel  must  first  of  all  be 
ascertained. 

Even  in  regard  to  vessels  legally  subjected  to  condemna- 
tion, nations  have  their  respective  laws,  and  if  destruction  is 
to  be  carried  out  in  full  conformity  with  the  provisions  of 
those  laws,  it  should  observe  a  proper  procedure. 

Conditions  which  justify  destruction  vary  according  to  na- 
tions and  the  ships  to  be  destroyed. 

1  The  Japanese  Prize  Regulations,  1904,  Arts.  II.,  VII.,  XXII.;  Lushington's 
Naval  Prize  Law,  255,  101;  Holland's  Naval  Prize  Law,  §  19,  §  304. 

2 The  Japanese  Prize  Regulations,  1904,  Art.  II.,  No.  4;  Lushington,  255;  Holland, 
§19. 

3  The  Japanese  Prize  Regulations,  1904,  Art.  II.,  No.  1;  Lushington,  §  255,  p.  53. 

4  The  Japanese  Prize  Regulations,  1904,  Arts.  V.,  XX.;  Lushington,  §  100;  Actaeon, 
2  Dod.  48;  John,  2  Dood,  336  Felicity,  2  Dod.  336;  Holland,  §  304;  Leucade  Spinks,  238. 

6  The  Japanese  Prize  Regulations,  1904,  Art.  VII.,  Sect.  3;  Lushington,  §  261,  §  205; 
Holland,  §  100,  §  105. 

6  The  Japanese  Prize  Regulations,  1904,  Art.  VII.,  Sect.  3;  Lushington,  §  192,  §  196; 
Holland,  §  91,  §  95;  orozembo,  6C.  Rob  430. 


CHAP.  I.,  SECT.  III.]      DESTRUCTION   OF  MERCHANTMEN.  333 

Some  writers  discriminate  enemy's  vessels  from  neutral 
vessels,  and  maintain  that  those  that  are  neutral  should  not,  in 
any  case,  he  destroyed,  while  other  writers  recognise  no  such 
discrimination. 

The  former  school  divides  itself  into  two  sections:  I. 
Those  who  consider  destruction  justifiable  only  in  so  far  as  ves- 
sels belonging  to  the  enemy's  state  are  concerned.  II.  Those 
who  propose  to  include  even  enemy's  vessels  of  public  or  pri- 
vate ownership. 

A  text  from  Japanese  Prize  Law  in  1894  may  be  cited  as 
an  example  of  the  proposition  in  the  first  argument. 

The  Japanese  regulations  in  the  Chino-Japanese  war  of 
1894  provide  in  Art,  XXII.  that:  If  the  enemy's  state  vessels 
are  unfit  to  be  sent  to  a  port,  as  stated  in  Art  XVIIL,  the 
commander  shall  destroy  the  vessels,  after  taking  the  crew,  the 
ship's  papers  and  the  cargo,  if  possible,  on  board  his  ship* 
The  crew,  the  ship's  papers,  and  the  cargo  should  be  sent  to 
a  port,  as  stated  in  Art.  XVIIL 

Prize  laws  of  Great  Britain  and  other  Powers,  however* 
have  an  enemy's  vessel  instead  of  a  vessel  of  the  enemy* $ 
state.  Below  the  English  Eegulations  will  be  cited  as  an  ex- 
ample : 

100.  In  either  of  the  following  cases: 

1.  If  the  Surveying  Officers  report  the  vessel  not  to  be  in  a  con- 
dition to  be  sent  to  any  port  for  adjudication;  or, 

2.  If  the  commander  is  unable  to  spare  a  prize  crew  to  navigate 
the  vessel  to  a  Port  of  Adjudication,  the  commander  should  release 
the  vessel  and  cargo  without  ransom,  unless  there  is  clear  proof  that 
she  belongs  to  the  enemy. 

101.  If  there  is  clear  proof  that  the  vessel  belongs  to  the  enemy, 
the  commander  shall  remove  her  crew  and  papers,  and,  if  possible, 
her  cargo,  and  then  destroy  the  vessel.  The  crew  and  cargo  (if  saved) 
shall  then  be  forwarded  to  a  proper  Port  of  Adjudication  in  charge 
of  a  prize  officer,  together  with  the  vessel's  papers  and  the  necessary 
affidavits.  Among  the  affidavits  should  be  one,  to  be  made  by  the 
prize  officer,  exhibiting  the  evidence  that  the  vessel  belonged  to  the 
enemy,  and  the  facts  which  rendered  it  impracticable  to  send  her  in 
for  adjudication. 


334  LAWS   OF   NAVAL  WARFARE.  [PART   III. 

Japan  provided  as  follows  in  her  revised  Prize  Regulations 
of  March  7,  1904: 

Art.  XCI.  In  the  following  cases,  and  when  it  is  unavoidable, 
the  captain  of  the  man-of-war  may  destroy  a  captured  vessel,  or  dis- 
pose of  her  according  to  the  exigency  of  the  occasion.  But  before 
so  destroying  or  disposing  of  her,  he  shall  transship  all  persons  on 
board  and,  as  far  as  possible,  the  cargo  also,  and  shall  preserve  the 
ship's  papers  and  all  other  documents  required  for  judicial  examina- 
tion. 

1.  When  the  captured  vessel  is  in  very  bad  condition  and  cannot 
be  navigated  on  account  of  a  heavy  sea. 

2.  When  there  is  apprehension  that  the  vessel  may  be  recaptured 
by  the  enemy. 

3.  When  the  man-of-war  cannot  man  the  prize  without  so  re- 
ducing her  own  complement  as  will  endanger  her  safety. 

Thus,  there  being  no  mention  of  an  enemy's  vessel,  any 
vessel  under  certain  circumstances  may  be  destroyed  according 
to  a  certain  procedure. 

The  Russian  regulations  were  as  follows : 

The  Russian  rules  in  regard  to  maritime  prizes,  of  March  27,  1895, 
approved  by  the  Admiralty  Board  September  20,  1900,  allow  the  de- 
struction   of    captured    vessels    under    certain    circumstances. 

Art.  XXI.  Dans  les  case  extraordinaires  ou  la  conservation  du 
batiment  capture"  sera  reconnue  impossible  par  suite  du  mauvais  £tat 
dans  lequel  il  se  trouve,  de  son  peu  de  valeur,  du  danger  qu'il  court 
d'etre  repris  par  Pennemi,  du  fait  que  les  ports  sont  trop  eloigned  ou 
bloqu&s,  qu'il  constitue  un  embarras  pour  le  batiment  capteur  ou  un 
obstacle  au  succes  de  ses  operations,  le  commandant  est  autoris£,  sons 
sa  responsabilite  personnel,  a  couler  sa  capture,  apr£s  avoir  transborde" 
les  hommes  et  autant  que  possible  le  chargement  et  avoir  pris  les 
mesures  voulues  pour  conserver  les  papiers  et  objets  qui  se  trouvent 
a  bord  et  qui  pourraient  etre  n^cessaires  pour  eclaire  lorsqu'elle  sera 
examinee  conformement  a  la  procedure  des  prises.  Le  commandant 
dresse,  d'apres  l'article  21  du  code  maritime,  procesverbal  des  circon- 
stances  qui  ont  motive"  la  destruction  du  batiment  capture^ 

Art.  XL.  of  the  Russian  instructions  of  1901  provides  that: 

In  the  following  and  other  similarly  extraordinary  cases,  the  com- 
mander of  the  Imperial  cruiser  has  the  right  to  burn  or  sink  a  de- 


CHAP.  L,  SECT.  III.]      DESTRUCTION   OF  MERCHANTMEN.  335 

tained  vessel  after  having  previously  taken  therefrom  the  crew,  and, 
as  far  as  possible,  all  or  part  of  the  cargo  thereon,  as  well  as  all 
documents  and  objects  that  may  be  essential  in  elucidating  the  mat- 
ter in  the  Prize  Court. 

( 1 )  When  it  is  impossible  to  preserve  the  detained  vessel  on 
account  of  its  bad  condition. 

(2)  When  the  danger  is  imminent  that  the  vessel  will  be  recap- 
tured by  the  enemy. 

(3)  When  the  detained  vessel  is  of  extremely  little  value,  and 
its  conduct  into  port  requires  too  much  expenditure  of  time  and 
coal. 

(4)  When  the  conducting  of  the  vessel  into  port  appears  difficult, 
owing  to  the  remoteness  of  the  port  or  a  blockade  thereof. 

(5)  When  the  conducting  of  the  detained  vessel  might  interfere 
with  the  success  of  the  naval  war  operations  of  the  Imperial  cruiser, 
or  threaten  it  with  danger. 

Thus  Eussia  also  put  no  distinction  between  neutral  and 
hostile  vessels,  which  perhaps  is  the  reason  that  so  many  neu- 
tral vessels  were  sunk  by  her  navy. 

Conceding  that  the  sinking  of  neutral  vessels  was  justifiable 
by  the  Russian  law,  nevertheless  the  following  points  are  cer- 
tainly open  to  objection : 

I.  Conditions  justifying  destruction  were  often  insufficient, 
because  the  commander's  individual  judgment,  upon  which 
everything  hung,  was  far  from  infallible. 

II.  Russian  officers  seem  to  have  been  prompted  simply  by 
their  love  of  destruction,  after  defying  their  own  national  code; 
as,  for  instance,  they  sank  the  Keisho-Maru,  troubling  them- 
selves not  a  whit  about  the  conditions  necessary  to  make  such 
destruction  lawful.     (See  this  chapter,  Sect.  I.,  VIII.) 

III.  Russians  did  not  pay  much  attention  to  the  duty  of 
preserving  human  lives  and  cargo,  while  engaged  in  the  destruc- 
tion of  vessels. 

IV.  They  seem  to  have  often  committed  a  serious  mistake 
in  supposing  that,  whether  a  would-be  prize  should  be  destroyed 
or  not  wholly  lay  at  their  discretion.  For  example,  they  de- 
stroyed the  Han-yei  Maru  without  ascertaining  the  disposition 
of  the  questionable  torpedo,  not  far  from  Port  Arthur,  whither 


336  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

they  could  have  brought  the  said  steamer  without  the  least  in- 
convenience. 

V.  It  is  a  great  mistake  to  deem  that  an  enemy  vessel 
captured,  but  not  yet  condemned,  is  a  prize,  and  that  as  she 
is  a  prize,  it  is  justifiable  to  sink  her. 

After  having  thus  enumerated  the  cases  of  Kussian  illegal 
conduct,  the  author,  as  one  of  the  professors  of  International 
Law  and  as  a  Japanese  subject,  cannot  but  feel  somewhat 
proud  of  the  justice  exhibited  by  the  Japanese  Navy  as  regards 
the  capture  of  vessels  and  other  affairs  during  the  war. 


CHAPTEK    II. 

INCIDENTS    BEARING    ON    PRIZE    LAW. 

As  the  decisions  of  the  Japanese  Prize  Court  will  be  treated 
concisely  in  Part  V.,  they  will  not  be  mentioned  in  this  chapter. 
The  following  cases  and  incidents  are  here  described: 

(1)  Those  cases  which  were  not  brought  to  the  Japanese 
Prize  Courts. 

(2)  Some  interesting  incidents  which  have  some  bearing 
upon  Prize  Law. 

The  cases  such  as  the  Allanton,  the  Arabia,  the  Smolensk, 
the  North  Sea  Incident,  etc.,  are  also  omitted,  because  these 
facts  are  already  well  known  to  the  west,  and  are  well  treated 
by  several  writers,  while  the  object  of  the  present  work  is  to 
bring  before  the  western  readers  the  facts  which  are  perhaps 
not  yet  fully  familiar  to  them. 

Sect.  I.     The    "Daijin    Maru    Incident." 

Though  there  are  many  precedents  in  Prize  Law,  the  case 
of  the  Daijin  Maru  is  a  peculiar  one. 

The  Japanese  sailing  ship  Daijin  Maru  was  captured  by 
Russian  torpedo  destroyers  at  Kamoi  Promontory  on  May  5th, 
1905.  All  her  crew  except  one,  whose  name  is  Okata,  were 
taken  to  the  Russian  destroyer,  and  a  prize  crew  came  on  board 
to  take  their  places.  They  were  destined  to  Vladivostock,  and 
sailed  separately.  Meeting  a  dense  fog,  and  owing  to  the  Rus- 
sian crew's  lack  of  geographical  knowledge,  the  Daijin  Maru 
drifted  about  and  entered  the  Sea  of  Korea,  where  the  ship 
met  a  Japanese  ship,  the  crew  of  which  captured  the  Russian 
crew. 

337 


338  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

The  details  are  as  follows: 

The  Disaster  of  the  Daijin  Maru. 

The  Daijin  Maru,  having  shipped  2000  bags  of  rice  and 
many  other  articles  at  Sakai,  Hoki,  sailed  on  April  25th,  and 
was  navigating  the  offing  of  Kamoi  Promontory,  about  25  miles 
from  land  at  2  o'clock  p.m.,  of  May  5th,  when  4  torpedo  boats 
under  the  Eussian  naval  flag  suddenly  appeared  and  a  rowboat 
with  about  30  officers  and  men  came  over  to  the  Daijin  Maru 
to  examine  her.  They  took  away  the  ship's  papers  and  other 
necessary  articles,  and  took  the  master,  Yabu,  and  the  crew, 
consisting  of  seven  men  to  the  boat,  leaving  Okada,  chief  sailor, 
alone  with  one  Eussian  officer,  two  petty  officers,  and  a  crew  of 
ten.  As  soon  as  the  boat  reached  the  Eussian  torpedo  destroyer, 
it  was  taken  on  board,  and  the  destroyer  sailed  away  westward. 
The  Eussian  crew  which  was  left  on  the  Daijin  Maru  directed 
Okada  to  sail  west.  On  May  12  they  saw  land,  but  being  pre- 
vented by  fog,  they  anchored  2  miles  off  the  land.  On  the  13th 
they  sailed  southward  and  saw  an  island  which  they  thought 
Askold  Island,  belonging  to  Eussia,  but  they  did  not  approach 
it,  because  it  was  sunset,  and  they  were  very  much  afraid  of 
touching  a  mine.  They  drifted  about  until  the  21st,  when  they 
saw  a  ship  going  southward.  Okada  cunningly  deceived  the 
Eussians,  pretending  that  this  ship  was  a  Eussian  torpedo 
boat.  The  Eussians  were  delighted,  and  hoisted  the  Eussian 
naval  flag,  and  signalled  with  guns  and  hand  flags.  Okada  took 
off  his  overcoat,  and  shaking  it,  cried  for  rescue.  The  ship,  on 
coming  nearer,  was  discovered  to  be  a  Japanese  ship.  The 
Eussians  thereupon  locked  Okada  up,  but  this  Japanese  ship 
compelled  the  Eussians  to  surrender  him,  threatening  in  case 
of  refusal  to  ram  the  ship.  The  Eussians  obeyed,  and  Okada, 
being  released,  swam  to  the  Japanese  ship  by  aid  of  a  rope 
and  reported  that  the  Eussians  had  no  ammunition  (though 
they  had  guns  and  rifles),  so  that  it  would  be  better  to  cap- 
ture the  Eussians.  Thereupon  the  sailors  of  this  Japanese 
ship  boarded  the  Daijin  Maru  and  captured  all  the  Eussians, 


CHAP.  II.,  SECT.  I.]      THE   DAIJIN   MARU   INCIDENT.  339 

and  were  about  to  proceed,  taking  the  Daijin  Maru  in  tow 
also.  Unfortunately  the  rope  broke,  and  this  ship  being  in 
the  service  of  the  Japanese  Government,  could  not  delay  longer. 
So  leaving  the  Daijin  Maru,  she  arrived  at  Gensan  at  4  o'clock 
a.m.  on  the  22nd.  Okada  was  examined  there  and  forbidden 
to  land,  and  could  not  find  a  way  to  rescue  his  ship.  The  ship 
that  rescued  Okada  and  captured  the  Russians  was  the  Toto 
Maru,  owned  by  the  Nippon- Shosen-Kabushiki  Co.,  and  in  serv- 
ice of  the  Japanese  Government.  On  the  24th  Okada  embarked 
on  the  Fujikawa  Maru,  a  ship  belonging  to  Osaka-Shosen- 
Co.,  arrived  at  Wushina  at  7  o'clock  a.m.  of  the  28th,  and 
being  released,  returned  to  his  home  in  Sanuki,  Japan.  The 
Daijin  Maru,  after  being  abandoned  by  the  Toto  Maru,  drifted 
about  the  offing  of  Joshin,  where  she  was  discovered  by  a  Japa- 
nese steamer,  the  Taisei  Maru,  and  turned  back  to  Gensan. 
The  ship's  cargo  had  not  received  any  damage  when  she  was 
abandoned,  but  it  is  said  that  both  cargo  and  instruments  were 
missing  when  the  ship  was  finally  discovered. 

It  is  a  common  practice  to  place  a  captured  vessel  in  charge 
of  a  prize  crew  to  bring  her  into  the  port  of  adjudication,  and 
it  is  not  unusual  to  meet  with  some  accident  on  the  way  to 
that  port.  For  instance,  a  drunken  officer,  having  neglected  to 
superintend  the  crew,  and  the  ship  running  aground,  there 
arose  a  question  as  to  who  was  responsible,  the  prize  officer  or 
the  captain;  it  was  decided  against  the  officer.  The  Daijin 
Maru  was  a  case  where  a  vessel  was  recaptured  by  one  of  Ja- 
pan's ships,  owing  to  bad  weather  and  Russian  sailors'  igno- 
rance of  their  surroundings;  but  the  ship  which  recaptured  the 
Daijin  Maru  was  nothing  but  a  common  merchant  vessel, 
which  had  no  right  to  make  a  capture,  so  that  the  Daijin  Maru 
cannot  be  said  to  be  "  recaptured."  Then  must  the  Daijin  Maru 
be  continued  as  an  enemy's  prize  after  the  capture  at  Kamoi? 
No,  for  the  prize  crew  were  all  captured  and  the  vessel  was 
taken  away  from  the  enemy.  Only  she  was  abandoned  by  the 
ship  that  rescued  her,  not  recaptured.  "Legally  speaking,  what 
is  the  status  of  such  a  ship?     Suppose  that  it  was  recaptured 


340  LAWS   OF  NAVAL  WARFARE.  [PART  III. 

by  a  Russian  warship.  In  such  a  case,  which  is  it  more  cor- 
rect to  say,  that  this  ship  was  captured  twice,  or  that  this  ship 
was  continuing  in  the  captured  condition?  The  Toto  Maru 
had  no  right  to  capture  her,  and  went  away  leaving  the  Daijin 
Maru.  How  does  this  action  cancel  the  Russian  warship's 
right  of  capture  obtained  at  Kamoi?  These  points  must  be 
considered  carefully,  yet  it  must  be  observed  that  the  Russians 
had  lost  their  prize  right  in  the  Daijin  Maru,  because  she  was 
left  with  no  person  on  board  and  the  Russian  crew  were  taken 
prisoners  when  she  was  abandoned. 

The  Japanese  Government  considered  it  a  case  which  did 
not  come  under  the  adjudication  of  a  Prize  Court.  This  is  evi- 
dent because  the  Daijin  Maru  was  not  captured  by  a  Japanese 
warship.  In  the  end  the  ship  was  returned  to  her  original 
owners,  and  there  was  no  question  of  salvage  in  connection  with 
her  return. 


Sect.  II.     The  Prometheus  Case. 

The  Osaka  Shosen  Co.  as  Owners  of  the  8.  S.  Prometheus. 

The  question  "  What  is  contraband  of  war  ?  "  has  had  an 
answer  in  the  present  case  which  sets  an  interesting  precedent. 
The  owners  of  the  S.  S.  Prometheus  tried  to  cancel  her  charter 
(with  the  Osaka  Shosen  Co.,  the  charterers),  on  the  ground 
that  rice  and  sugar,  which  they  proposed  to  ship  by  the  steamer, 
were  "  absolute "  contraband  of  war  according  to  the  declara- 
tion of  Russia;  while  the  charterers  contended  that  as  rice  and 
sugar  were  "  conditional "  contraband  of  war,  it  was  neither 
a  violation  of  International  Law  nor  of  the  charter  party  to  ship 
those  articles  between  the  commercial  ports  of  Japan;  the  re- 
sult being  that  the  case  was  brought  to  M.  Hewett,  as  arbi- 
trator, and  then  to  the  Court  of  Hongkong,  in  both  of  which 
decision  was  given  in  favour  of  the  Osaka  Shosen  Co. 
The  following  are  briefly  the  facts  of  the  case : 
The  charter-party  Was  signed  in  Hongkong,  on  the  10th  of 
February,    1904,   between   Messrs.    Sander,   Wieler   &    Co.,   as 


CHAP.  II.,  SECT.  II.]      THE   PROMETHEUS   CASE.  341 

agents  for  the  captain  and  owners  of  the  S.  S.  Prometheus,  and 
Mr.  T.  Anima,  manager  in  Hongkong  of  the  Osaka  Shosen  Co. 

Among  the  conditions  of  the  charter-party  was  the  follow- 
ing: That  the  vessel  was  to  be  at  the  sole  disposal  of  the  char- 
terers, or  their  agents,  to  carry  cargo  and  passengers,  for  lawful 
voyages  to  certain  ports  of  the  world  (open  ports  only),  ports 
in  the  Amur  district,  ports  north  of  Vladivostock,  and  inter- 
port  trading  in  the  Philippines  being  amongst  the  places  ex- 
cluded; the  agreement  not  to  be  cancelled  in  the  event  of  war 
being  declared;  the  charterers  to  pay  at  the  rate  of  $6750  per 
mensem  for  the  use  and  hire  of  the  steamer;  disputes  to  be 
settled  by  arbitration;  and  in  case  of  war  the  steamer  not  to 
be  directed  to  any  blockaded  port,  nor  to  carry  any  contraband 
of  war. 

The  charter-party  became  operative  on  the  22nd  of  Febru- 
ary, 1904,  by  the  steamer's  leaving  Hongkong  on  that  day. 
She  arrived  at  Takao  on  the  25th  of  the  same  month.  At 
Takao  and  Anping  she  took  on  board  a  shipment  of  rice  and 
sugar  for  Yokohama  and  Kobe,  completing  the  unloading  of  the 
cargo  on  the  18th  of  March.  Up  to  that  day  the  captain  had 
not  done  anything  further  than  to  give  to  the  Hongkong  office 
of  the  Osaka  Shosen  Co.  or  its  agents  some  remarks  con- 
cerning the  contraband  clause  of  the  charter-party;  but  on  the 
19th  of  March  he  refused  to  ship  rice  and  other  provisions  be- 
tween ports  of  Japan  on  the  strength  of  a  telegraphic  instruc- 
tion received  from  the  ship  owners,  the  telegram  containing  the 
words,  "  Try  to  cancel  the  charter."  He  then  demanded,  under 
date  of  the  23rd  of  March,  to  have  the  ship's  hire  increased 
by  $3250,  if  contraband  of  war  was  to  be  shipped. 

Here  followed  various  negotiations,  both  verbally  and  in 
writing,  between  the  captain  and  the  Kobe  office  of  the  Osaka 
Shosen  Co.,  but  without  agreeing  whether  rice  and  other  pro- 
visions were  to  be  treated  as  absolute  contraband  of  war  or  not. 

It  thus  appears  that  the  Osaka  Shosen  Co.  was  driven  to 
subcharter  the  steamer  for  the  remainder  of  the  term  of  the 
charter-party,  and  unloaded  all  the  cargo  already  shipped  at 


342  LAWS   OF  NAVAL  WARFARE.  [PART  III. 

Kobe,  and  had  the  steamer  leave  Kobe  on  the  26th  of  March  for 
Nagasaki,  where  she  was  subchartered  to  a  third  party. 

Principal  Points  Insisted  on  by  the  Ship  Owners: 

1.  Bice  and  other  provision  are  absolutely  contraband  of 
war  according  to  the  declaration  of  Eussia.  It  is  the  right  of 
a  belligerent  state  to  decide  what  is  contraband  of  war.  If  a 
neutral  state  thinks  the  decision  to  be  unlawful,  there  is  no 
other  way  to  remedy  it  than  to  declare  war  against  the  belliger- 
ent state. 

2.  Navigation  between  Japanese  ports,  such  as  Yokohama, 
Kobe,  and  Moji,  is  on  the  route  chartered  by  the  Government 
to  the  Osaka  Shosen  Co. ; x  consequently  it  is  unlawful  for 
a  foreign  ship  to  navigate  on  such  a  route. 

3.  Whatever  may  be  the  meaning  of  contraband,  rice  and 
other  provisions  have  actually  been  declared  by  Eussia  as  abso- 
lute contraband.  It  is  therefore  practically  placing  the  S.  S. 
Prometheus  in  danger  to  make  her  carry  such  articles.  As 
International  Law  is  an  extremely  vague  science,  as  it  were, 
the  determination  of  the  nature  of  contraband  deduced  from 
such  a  law  cannot  be  relied  upon  in  a  case  like  the  one  in 
question. 

Principal  Points  Insisted  by  the  Osaka  Shosen  Co.: 
1.  That  rice  and  other  provisions  are  conditionally  con- 
traband of  war  is  plain  enough  in  International  Law.  The 
declaration  of  Eussia,  which  does  not  conform  with  the  gener- 
ally accepted  International  Law,  cannot  bind  neutral  states. 
Besides,  the  charter-party,  which  was  signed  on  the  10th  of 
February,  had  been  made  out  four  days  before  the  Eussian  dec- 
laration, which  was  issued  on  the  14th  of  the  same  month. 
Further,  the  charter-party  may  be  said  to  have  been  made  out 
twenty  days  before  the  Eussian  declaration,  if  we  take  the  date 
of  its  publication  in  the  London  Gazette,  which  was  on  the  first 
of  March.     Again,  if  we  take  the  date  of  its  publication  at 

1  In  short,  the  owners  wanted  to  declare  the  object  of  the  charter-party  itself  to  be 
unlawful  by  insisting  upon  its  being  unlawful  for  the  S.  S.  Prometheus  to  navigate  on 
the  above-mentioned  route  according  to  the  Law  of  War  of  1756. 


CHAP.  II.,  SECT.  II.]   THE  PROMETHEUS  CASE.  343 

Hongkong,  which  was  on  the  9th  of  March,  the  charter-party 
antedates  the  declaration  by  twenty-nine  days. 

It  therefore  admits  of  no  doubt  that  as  the  charter-party 
had  been  made  out  prior  to  the  issuing  of  the  Kussian  declara- 
tion, both  contracting  parties  must  have  concluded  the  contract 
with  the  notion  of  looking  on  the  words  "  contraband  of  war," 
as  referring  (in  that  charter-party,  in  the  ordinary  sense  of  the 
words)  rice  and  other  provisions  as  conditional  contraband  of 
war. 

2.  Navigation  between  the  ports  of  Japan  is  not  on  the 
route  chartered  by  the  Government  to  the  Osaka  Shosen  Co., 
according  to  Arts.  X.  and  XI.  of  the  Anglo-Japanese  Treaty 
of  1894,  and  Arts.  IX.  and  X.  of  the  Treaty  between  Sweden 
and  Japan  of  1896. 

3.  The  objection  of  the  ship  owners  to  carrying  provisions 
as  contraband,  and  also  their  claiming  it  unlawful  for  a  foreign 
ship  to  navigate  between  the  ports  of  Japan,  is  not  bona  fide, 
but  must  have  been  made  with  the  object  of  obtaining,  if  pos- 
sible, a  new  charter  at  a  higher  rate,  as  they  offered  to  with- 
draw their  objection  if  the  charterer  would  pay  an  extra  con- 
sideration. 

The  court  for  arbitration  was  opened  at  the  office  of  the 
P.  and  0.  S.  S.  Co.,  Hongkong,  on  the  14th  of  July,  1904,  and 
the  inquiry  was  completed  on  the  21st  of  Sept.1 

The  following  are  the  decisions  on  this  case: 

Mr.  Hewett  summed  up  the  case  in  the  following  terms: 
Although  I  have  agreed  to  state  a  case  for  the  consideration  of 
the  Court,  I  propose  to  go  fully  into  the  argument.  The  charter  party 
is  the  first  document  to  be  considered.  It  has  been  shown  that  the 
written  clauses  in  such  an  agreement  should  deserve  special  attention 
as  being  more  likely  to  express  the  intention  of  the  parties  making 
the  agreement.  This  does  not  call  for  further  explanation,  as  it  is 
clear  that  when  an  Association,  such  as  the  Osaka  Shosen  Kaisha,  en- 
gaged in  the  shipping  business,  requires  from  time  to  time  to  charter 
vessels    for   different   trades,   it   is    a    convenience   for   them   to   have    a 

1  The  Text  of  the  Arbitration  and  Decision  of  the  Supreme  Court  of  Hongkong, 
mentioned  in  this  section,  are  taken  from  "Osaka  Shosen  Kaisha  versus  Owners  of  the 
S.  S.  Prometheus,"  printed  at  the  Daily  Press,  Hongkong. 


344  LAWS   OF  NAVAL  WARFARE.  [PART   III. 

set  form  of  charter  party  ready  printed;  but  as  the  terms  of  the  in- 
dividual charters  must  vary,  special  clauses  may  be  added,  while  some 
of  the  regular  clauses  may  be  changed  or  deleted. 

Now,  in  this  Charter  Party  I  find  the  following  are  the  special 
written  additions  to  the  printed  form: 

Clause  2.     "  This  agreement  not  to  be  cancelled  in  event  of  war." 

Clause  16.  "  The  steamer  is  not  to  take  our  Hongkong  Govern- 
ment Passenger  Certificate." 

Clause  36.  "  Should  the  steamer  be  required,  in  accordance  with 
the  Japanese  Law,  to  undergo  the  Marine  Authorities  Survey,  the  char- 
terers may  order  the  ship  to  do  so,  at  their  expense,  without  prejudice 
to  this  charter  party." 

Clause  37.  "  In  case  of  war  steamer  not  to  be  directed  to  any 
blockaded  port,  nor  carry  any  contraband  of  war." 

Clause  38.  "  Saloon  and  all  available  staterooms  to  be  at  char- 
terers' disposal." 

While  it  is  necessary  to  take  the  charter  party  as  a  whole,  the 
above  are  the  clauses  to  which  we  must  chiefly  look  in  order  to  ascertain 
the  intention  of  the  parties.  The  charter  party  does  not  appear  to 
have  been  hurriedly  drawn  up  ( Foard,  page  257 ) ,  for  we  have  the  evi- 
dence of  Mr.  Becker,  under  whose  directions  the  agreement  was  en- 
tered into,  that  the  negotiations  lasted  some  days,  and  were  completed 
some  little  time,  or  a  few  days,  before  the  charter  party  was  actually 
signed;  while  Mr.  Arima  could  not  definitely  state  this,  he  did  not 
contradict  it.  The  intentions  of  the  parties  to  the  agreement  are  to 
my  mind  quite'  clear.  War  was  momentarily  expected  to  break  out 
between  Russia  and  Japan,  and  a  special  clause  was  therefore  inserted 
in  the  charter  party  that  should  war  take  place  the  charter  party 
was  not  to  be  cancelled.  Clause  37  states  the  steamer  was  not  to 
carry  contraband  of  war  or  proceed  to  a  blockaded  port.  The  disjtute 
which  has  now  arisen  hinges  chiefly  on  this  clause,  not  that  the  clause 
is  not  clear,  but  because  there  is  a  difference  of  opinion  between  the 
two  parties  as  to  what  is  contraband  of  war  under  existing  conditions. 
I  will  deal  with  this  question  later.  Another  point  which  has  been 
raised  is  as  to  whether,  when  the  Prometheus  was  chartered,  it  was 
intended  to  run  her  between  Japanese  ports,  and  if  so  whether  this  was 
done  with  the  consent  of  the  owners.  Mr.  Arima  has  stated  very  clearly 
that  when  he  chartered  the  Prometheus  under  instructions  from  his 
head  office,  he  understood  she  was  to  be  used  on  one  of  the  regular  lines 
of  the  Osaka  Shosen  Kaisha,  probably  between  Japan  and  Formosa. 
In  order  that  there  should  be  no  doubt  on  this  and  other  points,  Mr. 
Arima  wrote  on  19th  February  to  Messrs.  Sander,  Wieler  &  Co.,  and 
that   firm    replied   on   the    following   day   confirming  this;    the    agents 


CHAP.  II.,  SECT.  II.]   THE  PROMETHEUS  CASE.  345 

further  raised  no  objection  when  the  vessel  sailed  for  Formosa  to  load 
cargo  for  Japan,  although  they  were  notified  on  the  20th  February 
as  to  what  the  Osaka  Shosen  Kaisha  intended  to  do  with  the  vessel. 
Frequent  reference  is  made  in  the  charter  party  to  the  carrying  of 
passengers,  but  while  it  is  specially  written  in  the  agreement  that 
a  Hongkong  Government  Passenger  Certificate  is  not  to  be  taken  out, 
another  clause  (No.  3G)  is  added  providing  for  a  Japanese  survey. 
In  view  of  this  I  must  agree  with  Mr.  Hastings  in  his  contention  that 
at  the  time  the  charter  party  was  signed  it  was  understood  by  both 
parties  that  the  vessel  would  engage  in  the  Japanese  interport  or 
colonial  trade. 

Mr.  Hastings  has  urged  that  the  owners  endorsed  the  action  of  their 
Hongkong  agents  by  not  objecting  to  what  they  had  done.  The  first 
protest  which  was  received  from  the  owners  appears  to  have  been 
in  a  telegram  received  by  the  Master  of  the  Prometheus  at  Kobe  on 
the  19th  March  (B  8).  The  owners  apparently  had  become  nervous 
about  the  safety  of  their  vessel,  Lloyds  having  declared  rice,  sugar, 
and  provisions,  between  Japanese  ports,  to  be  contraband;  they  there- 
fore instructed  the  commander  to  decline  this  cargo,  and  they  added 
"  Try  cancel."  I  take  this  to  mean  that  even  then  they  did  not 
repudiate  the  action  of  their  agents,  but  not  liking  the  business  in 
which  their  vessel  was  engaged,  wished  to  cancel  the  charter  party 
if  possible.  Another  telegram  a  week  later  instructed  the  commander 
to  act  up  to  the  terms  of  the  charter  party  but  to  decline  contraband 
and  blockaded  ports  (which  was  forbidden  by  the  charter  party).  We 
have  no  evidence  as  to  when  a  copy  of  the  charter  party  reached  the 
owners,  but  as  the  negotiations  were  concluded  about  the  6th  February, 
presumably  the  details  of  the  agreement  were  before  them  when  they 
telegraphed  to  the  Commander  on  the  26th  March. 

Mr.  Wilkinson  has  stated  that  the  agents  at  Hongkong  had  no 
power  to  undertake  that  the  Prometheus  should  be  engaged  on  an  un- 
lawful voyage,  or  in  an  unlawful  manner,  and  further  that  the  letter 
of  23rd  March,  addressed  to  the  Osaka  Shosen  Kaisha  showed  that 
they  had  not  the  power  to  alter  the  terms  of  the  charter  party,  as 
they  then  stated  their  principals  required  an  additional  monthly  pay- 
ment of  $3250  if  the  Prometheus  were  employed  in  the  interport  Japa- 
nese coast  trade  and  carried  cargo  which  "  may  be  considered  con- 
traband of  war."  The  charter  party  clearly  states  that  contraband 
was  not  to  be  carried.  The  Osaka  Shosen  Kaisha,  while  maintaining 
the  cargo  they  wished  carried  was  not  contraband,  offered  to  be  fully 
responsible  if  it  were  proved  to  be  contraband.  The  owners  demanded 
extra  payment  not  for  carrying  contraband,  but  for  carrying  what 
may  be  considered  contraband.     As  I  will  show  later  I  think  there  is 


346  LAWS   OF  NAVAL   WARFARE.  [PART  III. 

a  very  wide  difference  between  the  meaning  of  these  two  terms.  I  have 
already  stated  that  in  view  of  the  wording  of  the  charter  party,  and 
the  letters  which  passed  between  the  signatories,  I  hold  the  opinion 
that  it  was  understood  at  the  time  the  agreement  was  entered  into 
that  the  vessel  was  to  be  engaged  in  the  coasting  trade,  nor  has  this 
been  denied  by  the  Hongkong  agents  of  the  steamer.  The  position  of 
affairs  had  very  much  changed  between  the  beginning  of  February  and 
the  end  of  March,  and  the  cost  of  chartering  steamers  had  much  in- 
creased. This  by  itself  is  no  reason  why  an  additional  demand  should 
have  been  made  upon  the  charterers  unless,  as  stated  by  Mr.  Wilkin- 
son, it  is  shown  that  they  did  in  fact  wish  to  have  the  terms  of  the 
charter  party  altered. 

With  regard  to  the  cargo  actually  carried,  it  would  appear  that 
the  master  of  the  Prometheus  raised  some  objections  to  taking  rice 
and  sugar  to  Japan  before  he  left  Hongkong,  but  this  objection  seems 
to  have  been  overcome,  for  subsequently  he  contented  himself,  until 
arrived  at  Kobe,  with  merely  writing  a  letter  to  the  local  representa- 
tives of  the  Osaka  Shosen  Kaisha  at  each  port,  drawing  their  atten- 
tion to  Clause  37  of  the  charter  party.  In  view  of  the  then  condition 
of  affairs  in  the  Far  East  this  was  a  very  proper  step  for  him  to  take 
in  the  interest  of  his  owners.  In  his  examination  the  commander  of 
the  Prometheus  stated  he  made  no  protest  against  rice  or  sugar  being 
shipped  in  Formosa  for  Japan,  and  accepted  it  as  a  matter  of  course 
"  from  what  he  knew  at  the  time."  He  did  not  recollect  having  had 
any  dispute  on  the  subject  with  the  Osaka  Shosen  Kaisha  in  Hong- 
kong. He  made  his  first  formal  protest  at  Kobe  in  consequence  of 
telegraphic  instructions  from  his  owners.  The  Osaka  Shosen  Kaisha 
were  anxious  for  the  Prometheus  to  continue  on  her  voyage  from 
Yokohama  via  Kobe  and  other  ports  to  Formosa,  and  they  therefore 
wrote  to  the  commander  asking  him  for  a  definition  of  contraband. 
He  replied  that  it  was  the  business  of  the  charterers  to  ascertain  what 
might  be  considered  as  contraband.  The  next  day,  after  receipt  of 
his  owners'  instructions,  he  wrote  to  say  that  the  cargo  then  being 
shipped  was  contraband.  This  the  Osaka  Shosen  Kaisha  denied.  Hold- 
ing this  view  the  Osaka  Shosen  Kaisha  offered  to  guarantee  all  losses 
which  might  arise  were  the  cargo  in  question  to  be  contraband.  The 
question  of  paramount  importance  however  is  what  is,  or  is  not,  con- 
traband; and  whether  a  cargo  of  lumber,  rice,  foodstuffs,  etc.,  etc., 
shipped  from  Kobe  to  Formosa  comes  under  the  heading  of  contraband 
of  war.  A  mass  of  authorities  have  been  quoted,  but  as  these  will 
be  considered  by  the  Court  I  will  not  discuss  them  in  detail.  That 
Russia  intended  to  make  rice  and  foodstuffs  imported  into  a  Japanese 
port  contraband  of  war  is,  I  think,  made  abundantly  clear  by  the  Offi- 


CHAP.  II.,  SECT.  II.]      THE   PROMETHEUS   CASE.  347 

cial  Declaration.  I  cannot  follow  Mr.  Hastings  in  his  argument  when 
he  translates  the  words  de  meme  que  "  such  as,"  and  when  he  says 
the  words  le  riz,  les  vivres,  are  controlled  by  the  preceding  words  "  en 
general  tons  les  objets  destines  a  la  guerre,"  etc.,  etc.  Authorities  have 
been  quoted  to  show  that  articles  in  time  of  war  may  be  divided  into 
three  classes:  1.  Munitions  of  war  of  all  descriptions.  2.  Equivocal 
articles.  3.  Articles  of  an  entirely  peaceful  nature.  Mr.  Wilkinson 
laid  great  stress  upon  the  fact  that  it  was  in  the  power  of  a  bel- 
ligerent to  make  anything  and  everything  contraband,  and  the  only 
way  by  which  a  neutral  might  protest  against  what  he  considered  an 
illegal  or  unreasonable  declaration  was  by  an  appeal  to  arms.  Now 
Russia's  declaration  as  to  what  is  contraband  of  war  is  so  far  reach- 
ing, and  allows  of  such  a  wide  interpretation,  as  to  include  almost  all 
articles  of  agriculture  and  of  raw  and  manufactured  produce,  which, 
under  ordinary  conditions  during  times  of  peace,  are  imported  into 
Japan  and  Formosa.  Now,  if  we  admit  Mr.  Wilkinson's  argument,  Rus- 
sia might  have  gone  a  short  step  farther  and  declared  that  everything 
imported  into  Japan  might  in  some  way  or  other  be  of  use  to  the 
enemy  and  was  therefore  contraband.  I  consider  such  an  argument- 
must  be  held  to  be  entirely  fallacious.  If  by  a  simple  declaration,  it 
is  in  the  power  of  one  belligerent  to  declare  as  contraband  the  whole 
of  the  neutral  trade  of  her  enemy,  this  practically  amounts  to  a 
blockade  of  the  enemy's  country  without  the  first  belligerent  incurring 
the  risk  and  obligations  of  enforcing  an  effective  blockade  with  her 
navy.  A  declaration  by  Russia,  emphasised  perhaps  by  an  occasional 
cruiser  raid  from  Vladivostock,  might  therefore  put  a  stop  to  the 
whole  neutral  trade  of  Japan  and  amount  to  a  blockade.  Mr.  Hast- 
ings has  quoted  authorities  to  show  that  neutrals  have  rights  as  well 
as  belligerents  during  times  of  war,  and  are  entitled,  within  certain 
restrictions,  to  continue  carrying  on  a  peaceful  trade  with  one  or  both 
of  the  belligerents,  so  long  as  they  maintain  their  neutrality.  This  is 
very  clearly  set  forth  by  Wheaton  in  his  chapter  on  "  Rights  of  War 
as  to  Neutrals,"  pages  690  to  693.  This  is  too  long  to  quote  in  full, 
but  I  will  make  a  few  extracts.     Here  it  is  stated: 

(§  510  C.)  "A  blockade  must  be  absolute,  that  is,  it  must  in- 
terdict all  commerce  whatever  with  the  blockaded  port." 

(§  512.)  "The  definition  of  a  lawful  maritime  blockade,  requir- 
ing the  actual  presence  of  a  maritime  force  stationed  at  the  entrance 
of  the  port,  sufficiently  near  to  prevent  communication  as  given  by  the 
text  writers,  is  confirmed  by  the  authority  of  numerous  modern 
treaties,  and  especially  by  the  Convention  of  1801,  between  Great 
Britain  and  Russia,  etc.,  etc." 

All   due   consideration   must   be  given  to  so  high   an   authority  on 


348  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

shipping  and  marine  insurance  as  that  referred  to  by  Mr.  Wilkinson, 
but  we  must  also  bear  in  mind  that  while  the  insurance  world  may 
consider  certain  articles  as  contraband  and  regulate  their  business 
accordingly,  it  does  not  necessarily  follow  that  the  articles  are  con- 
traband. A  war  having  broken  out,  insurance  companies  naturally 
look  to  it  that  if  they  are  called  upon  to  accept  greater  risks  they 
are  entitled  to  extra  remuneration,  and  therefore  they  may,  in  the 
conduct  of  their  business,  declare  certain  articles  as  contraband,  but 
it  does  not  necessarily  follow  that  they  are  contraband.  I  am  strength- 
ened in  this  opinion  by  the  evidence  given  by  Mr.  Whittal,  who  stated 
that  in  anticipation  of  a  declaration  from  Russia  extra  premiums  had 
been  charged  on  rice  shipped  to  Japan;  that  is  to  say,  the  insurance 
companies,  by  charging  extra  premiums,  had  placed  rice  in  the  list  of 
contraband  of  war  before  a  declaration  to  this  effect  had  been  issued 
by  the  Russian  Government.  Thus,  when  the  owners  of  the  Prometheus 
telegraphed  to  the  commander  that  Lloyds  considered  certain  articles 
as  contraband,  while  it  showed  it  was  held  by  some  that  a  certain 
risk  was  run  by  carrying  these  goods,  it  did  not  necessarily  imply 
that  the  goods  were  contraband,  or  that  Russia  would  be  entitled  to 
confiscate  the  goods  or  the  neutral  vessel  carrying  them  in  the  event 
of  seizure.  As  I  have  already  stated,  I  consider  there  is  a  wide  differ- 
ence between  what  "may  be  considered  as  contraband,"  and  what  is 
actually  contraband  of  war,  both  from  a  marine  insurance  and  from 
a  shipping  point  of  view.  The  evidence  before  us  in  my  opinion  clearly 
shows  that  the  intention  of  the  charterers  was  to  engage  the  vessel 
in  the  Japanese  coasting  or  colonial  trade,  and  that  this  was  under- 
stood at  the  time  by  the  agents  of  the  Prometheus.  Under  these  cir- 
cumstances it  does  not  appear  to  me  likely  that  had  the  owners,  or 
their  agents,  suggested  inserting  a  clause  to  the  effect  that  the  vessel 
was  not  to  carry  "  what  may  be  considered  contraband,"  the  charterers 
would  have  agreed  to  such  a  condition.  Knowing  as  they  did  that  war 
would  probably  break  out  before  long,  they  provided  against  all  reason- 
able dispute  by  the  insertion  of  the  clause  actually  in  the  charter 
party  ( No.  37 )  ;  but  it  appears  to  me  most  improbable  that  they 
would  have  chartered  a  vessel  for  the  coasting  trade,  with  so  vague 
and  far-reaching  a  clause  as  "  what  may  be  considered  contraband 
of  war."  At  all  events  no  evidence  was  brought  before  me  to  show 
that  this  was  the  intention  of  the  agents  when  drawing  up  the  terms 
of  the  charter  party.  I  cannot  agree  that  the  only  means  by  which 
a  neutral  can  protest  against  interference  of  his  trade  with  one  bel- 
ligerent is  by  going  to  war  with  the  other  belligerent  whose  declara- 
tion he  considers  unreasonable.  Switzerland  has  a  considerable  trade 
with  Japan,  but  clearly  she  cannot  go  to  war  with  Russia  should  she 


CHAP.  II.,  SECT.  II.]   THE  PROMETHEUS  CASE.  349 

consider  her  trade  with  Japan  has  been  unduly  interfered  with  in 
consequence  of  the  former's  declaration  regarding  contraband.  If  the 
only  risk  a  great  power  runs  by  making  a  "  grossly  unreasonable "' 
declaration  as  to  contraband,  while  she  is  at  war  with  another  power, 
is  to  expose  herself  to  "  the  hostilities "  of  the  objecting  neutral 
powers,  the  question  resolves  itself  not  into  one  of  right,  or  of  in- 
ternational law,  but  solely  into  one  of  might.  A  great  power  could 
thus  with  impunity  ruin  the  trade  of  her  smaller  and  weaker  com- 
petitors without  risk  of  harm  to  herself.  Mr.  Hastings  quoted  authori- 
ties to  show  that  neutral  powers  had  the  right  to  protest  against  an 
undue  declaration  with  regard  to  contraband.  We  understand  Eng- 
land and  the  United  States  of  America  have  already  protested  against 
a  part  of  Russia's  declaration;  and  an  instance  has  been  cited  when, 
in  1795,  during  war  with  France,  England  had  to  modify  her  declara- 
tion as  to  certain  foodstuffs  being  contraband,  in  consequence  of  the 
protests  of  Sweden,  Denmark  and  the  United  States  of  America. 

With  regard  to  the  particular  voyage  and  cargo  concerning  which 
this  dispute  has  arisen,  though  it  is  true  foodstuffs  and  timber  had 
been  declared  contraband,  I  do  not  hold,  as  explained  above,  that  these 
need  necessarily  be  contraband.  It  has  been  shown  that  the  ports 
to  which  it  was  intended  to  despatch  the  Prometheus  were  neither 
blockaded  by  the  Russians,  nor  were  they  ports  of  military  or  naval 
equipment.  Nothing  has  been  adduced  to  show  that  Mr.  Arima's  state- 
ment is  not  correct,  viz.:  that  it  was  an  ordinary  voyage,  and  the 
cargo  was  of  an  ordinary  nature,  not  intended  for  the  use  of  the 
enemy's  forces  or  for  use  even  in  the  remotest  degree  against  the  Rus- 
sians. If  I  am  correct  in  this,  the  master  and  owners  of  the  Prome- 
theus were  not  justified  in  refusing  to  allow  the  vessel  to  load  the 
cargo  and  to  continue  on  her  voyage  to  Formosa,  and  the  charterers 
had  done  all  that  could  be  reasonably  expected  of  them  in  offering  to 
take  all  risks  should  the  cargo  in  question  be  found  to  be  contraband. 

Another  point  raised  by  Mr.  Wilkinson  was  the  illegality  of  the 
voyage.  In  this  he  was  supported  by  Mr.  Whittall.  I  will  not  follow 
Mr.  Wilkinson  into  his  arguments  in  detail  or  fully  discuss  his  authori- 
ties, as  these  also  will  be  considered  by  the  Court;  but  I  would  here 
remark  that  what  I  have  already  said  with  regard  to  insurance  com- 
panies again  applies.  The  Secretary  of  the  China  Traders'  Insurance 
Co.  has  probably  as  extensive,  if  not  the  most  extensive,  knowledge  of 
the  customs  of  insurance  business  as  carried  on  in  the  Eastern  hemi- 
sphere as  anyone  engaged  in  the  business,  and  his  opinion  must  there- 
fore receive  fullest  consideration ;  but  here  again  he  spoke  from  an 
insurance  point  of  view.  I  do  not  feel  called  upon  to  deal  with  the 
argument  as  to  the  position  a  neutral  vessel  may  assume  by  engaging 


350  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

in  a  "  privileged  "  trade,  the  question  to  my  mind  being  whether  the 
trade  between  Japan  and  Formosa  is  privileged.  I  was  in  some  little 
doubt  at  first  as  to  whether  this  point  should  be  referred  to  the  Court, 
but  in  view  of  the  authorities  quoted  by  Mr.  Wilkinson  decided  it  was 
best  to  do  so,  the  more  so  as  he  was  supported  in  his  contention  by 
Mr.  Whittall.  I  think,  however,  that  Mr.  Hastings  is  correct  in  his 
argument  on  this  point.  The  new  treaties  with  Japan,  and  I  refer 
particularly  to  those  of  Great  Britain  of  1894,  Articles  X.  &  XI.,  and 
Norway  of  1896,  Articles  IX.  &  X.  provide  for  equality  of  treatment 
— so  far  as  the  treaty  port  trade  is  concerned — between  vessels  of 
those  nations  and  Japanese  vessels.  While,  further,  it  is  a  fact  that 
both  under  existing  treaties,  and  prior  to  the  signing  of  the  British 
Treaty  of  1894,  "  foreign  vessels,"  that  is  to  say  non- Japanese  vessels, 
were  freely  allowed  to  trade  with  certain  other  ports  in  Japan  under 
special  permits,  and  this  privilege  is  extended  to  "  foreign  "  vessels  to 
the  present  day,  irrespective  of  whether  Japan  is  at  war  or  at  peace. 
The  fact  that  vessels  other  than  Japanese  may  not  of  recent  years 
have  traded  between  the  ports  (or  some  of  them)  to  which  the  Osaka 
Shosen  Kaisha  wished  to  run  the  Prometheus  does  not  invalidate  their 
right  to  doing  so  should  their  owners  desire. 

I  have  attempted  to  review  the  arguments  brought  before  me,  and 
would  now  state  that  the  questions  which  I  ask  be  considered  by  the 
Court,  before  a  final  decision  is  arrived  at,  are  as  follows: 

Firstly:  Whether  under  the  terms  of  Russia's  declaration  the  cargo 
intended  for  shipment  from  Yokohama  and  Kobe  to  Kagoshima,  Oki- 
nawa, Keelung,  Anping  and  Takao  by  the  Prometheus  was  contraband. 

If  so,  whether  Russia's  declaration  in  this  respect  is  binding  upon 
neutrals,  or  whether,  as  urged  by  Mr.  Hastings,  it  is  ultra  vires. 

Secondly:  Whether  the  line  on  which  the  Osaka  Shosen  Kaisha 
wished  to  employ  the  Prometheus  is  a  "  privileged  "  line  and,  if  so,  was 
it  therefore  unlawful  for  a  neutral  ship  to  engage  in  such  a  trade. 

Thirdly:  Whether  in  view  of  all  the  evidence  brought  forward  the 
Osaka  Shosen  Kaisha  attempted  to  violate,  or  alter  the  terms  of  the 
charter  party  as  a  whole,  but  particularly  with  reference  to  clause  37, 
by  instructing  the  commander  to  load  a  cargo  of  foodstuffs  and  timber, 
and  to  proceed  to  the  ports  named  in  their  letter  of  27th  April,  1904. 

Edbeet  Ansgar  Hewett, 

Hongkong,  26th  September,  1904.  Arbitrator. 

THE    COURT'S    DECISION. 
The  questions  referred  to  the  Court  by  the  Arbitrator  were  argued 
before  Sir  H.  S.  Berkeley,  Chief  Justice,  on  the  7th,  8th,  11th  &  12th 
November,    1904. 


CHAP.  II.,  SECT.  II.]   THE  PROMETHEUS  CASE.  351 

Hon.  E.  H.  Sharp,  K.C.,  instructed  by  Mr.  John  Hastings,  ap- 
peared on  behalf  of  the  Osaka  Shosen  Kaisha;  Mr.  M.  W.  Slade  in- 
structed by  Mr.  C.  D.  Wilkinson  on  behalf  of  the  owners  of  the  S.  S. 
Prometheus. 

His  Lordship  delivered  on  November  24th  the  following  judgment: 

.  .  .  My  answer  to  the  first  question  put  to  me  by  the  arbitrator 
must,  therefore,  for  the  reasons  I  have  given  be  (1)  that  the  cargo 
intended  to  be  loaded  by  the  charterers  on  the  steamship  Prometheus 
was  not  contraband  of  war  within  the  meaning  of  the  charter  party; 
(2)  that  the  Russian  declaration  constituting  provisions  unconditional 
contraband  was  not  binding  upon  neutrals  who  were  no  party  thereto, 
and  consequently  has  no  bearing  upon  the  construction  of  the  charter 
party  between  the  Osaka  Shosen  Kaisha  and  the  -owners  of  the  ship 
Prometheus. 

The  remaining  questions,  the  second  and  third  put  to  me  by  the 
Arbitrator,  present  no  difficulty.  With  respect  to  the  second  question, 
in  my  opinion  the  engagement  of  the  Prometheus  by  the  Osaka  Shosen 
Kaisha  for  employment  in  the  Japanese  coasting  trade,  that  is  to  say, 
in  the  interport  trade  of  Japan,  was  in  no  sense  illegal.  The  propriety 
of  such  voyaging  was  never  questioned  by  anyone  until  the  solicitors 
for  the  owners  took  the  point  before  the  Arbitrator  that  the  inter- 
port trade  of  Japan  was  a  privileged  one;  and  that  consequently  it 
was  illegal  for  the  neutral  ship  Prometheus  to  engage  therein  during 
the  existence  of  hostilities.  In  other  words,  that  such  trading  came 
by  analogy  within  the  principle  of  what  is  known  as  the  Rule  of 
the  War  of  1756,  rendering  the  ship  liable  to  be  captured  and  taken 
to  a  Russian  Prize  Court  for  adjudication!  It  is  not  necessary  to 
consider  whether  the  Rule  of  the  War  of  1756  is  obsolete,  as  con- 
tended by  Mr.  Sharp,  or  not;  for  in  my  opinion  even  if  it  were  in  full 
force  and  effect  it  would  have  no  application  to  the  facts  of  this  case. 
To  have  made  that  rule  apply,  the  ports  traded  to  must  have  been 
totally  closed  before  the  war  to  all  but  Japanese  subjects;  and  must 
only  have  been  opened  to  others  after  the  war  and  because  of  the 
pressure  and  necessity  of  the  war  due  to  the  preponderating  naval 
supremacy  of  the  belligerent  enemy.  In  point  of  fact  no  such  pres- 
sure and  necessity  has  existed  in  this  war  on  the  part  of  Japan.  Owing 
to  the  fortunes  of  war,  the  naval  forces  of  Japan  have  from  the  outset 
of  the  war  gained  an  ascendancy  securing  immunity  to  her  ports  from 
the  naval  force  of  the  enemy.  It  is  found  as  a  fact  by  the  Arbitrator 
that  since  a  time  prior  to  1894 — that  is  to  say  for  a  period  of  ten 
years  previous  to  the  charter  of  the  Prometheus — foreign  vessels, 
meaning  thereby  vessels  other  than  Japanese,  have  been  allowed  to 
trade  freely  under  treaty  with  certain  ports  ordinarily  known  as  treaty 


352  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

ports,  and  under  special  licence  with  certain  other  ports  known  as  non- 
treaty  ports;  and  it  appears  as  a  further  fact  that  the  Osaka  Shosen 
Kaisha  had  permission  from  the  Japanese  Government  before  the  out- 
break of  war  to  employ  foreign  ships  in  trading  to  non-treaty  ports. 
The  Arbitrator  adds  that  this  privilege  was  extended  by  Japan  to  for- 
eign vessels  irrespective  of  the  question  of  peace  or  war.  I  entirely 
concur  in  this  finding,  which  is  supported  by  clear  documentary  evi- 
dence. In  my  opinion,  trading  under  the  licence  of  one  belligerent  given 
under  such  circumstances  does  not  render  a  neutral  ship  liable  to 
capture  by  the  other  belligerent.  My  answer  to  the  second  question 
is  that  the  line  on  which  the  Osaka  Shosen  Kaisha  intended  to  employ 
the  Prometheus  was  not  a  "  privileged "  one ;  and  that,  at  the  time 
when  the  master  of  that  ship  refused  to  load  provisions  for  a  voyage 
to  Japanese  ports  between  Kobe  and  Formosa,  it  was  lawful  for  that 
neutral  ship  to  engage  in  that  trade. 

Coming  now  to  the  answer  to  be  given  to  the  third  question  put 
by  the  Arbitrator.  It  is  contended  on  behalf  of  the  owners  that  what- 
ever may  be  the  true  meaning  of  contraband  of  war,  and  whatever 
may  be  the  proper  view  to  take  with  respect  to  the  validity  or  other- 
wise of  the  Russian  Declaration  making  provisions  unconditional  con- 
traband, yet  as  Russia  had  as  a  fact,  whether  rightly  or  wrongly, 
declared  provisions  unconditional  contraband,  and  as  the  Prometheus 
would  as  a  fact,  rightly  or  wrongly,  have  been  captured  if  found  by 
a  Russian  cruiser  carrying  provisions,  and  have  been  taken  to  a  Rus- 
sian Prize  Court  for  adjudication,  it  was,  in  view  of  the  exception  in 
clause  ( 1 )  of  the  charter  party  with  respect  to  "  arrest  and  restraint 
of  Princes,  Rulers,  and  Peoples,"  the  duty  of  the  charterers  to  refrain 
from  loading  on  the  Prometheus  anything  that  would  or  might  render 
such  ship  liable  to  be  captured  and  taken  in  for  adjudication;  and 
that  if  the  charterer  in  disregard  of  that  alleged  duty  offered  cargo 
the  carriage  of  which  would  render  the  ship  liable  to  such  restraint, 
it  was  the  right  and  the  duty  of  the  Master  to  decline  to  receive  and 
load,  and  if  already  loaded,  to  unload  such  cargo.  It  may  be  con- 
ceded that  where  there  is  as  a  fact  a  risk  of  capture,  such  risk  would 
amount  to  a  "  restraint  of  Princes "  within  the  exception  in  Clause 
( 1 )  of  the  charter  party,  whether  the  capture  would  or  would  not 
be  lawfully  made,  i.e.  made  in  accordance  with  international  law;  but 
to  entitle  the  owners  of  the  Prometheus  to  the  benefit  of  that  excep- 
tion, the  risk  apprehended  must  have  been  so  direct  and  imminent  as 
to  render  capture  almost  certain.  The  cases  do  not  go  beyond  this, 
that  the  master  of  the  Prometheus  might  have  unloaded  as  he  did  at 
Kobe,  had  he  had  a  reasonable  apprehension  of  his  ship  being  cap- 
tured had  he  attempted  to  sail   from  Kobe,  with   the  goods  on  board. 


CHAP.  II.,  SECT.  III.]    A  SHIP  FOR  SCIENTIFIC  EXPLORATION.    353 

There  was,  however,  at  the  time  he  unloaded  and  refused  to  carry- 
provisions  no  cause  for  such  apprehensions  on  the  part  of  the  master. 
Japan  had  at  that  time  secured  a  naval  superiority  which  must  have 
or  should  have  freed  the  master  from  any  such  apprehension.  There 
were  at  that  time  practically  no  Russian  ships  available  for  making 
captures,  and  none  had  as  a  fact  ever  been  made  on  the  trade  route 
which  the  master  was  directed  to  follow.  The  case  of  the  Nobel  Ex- 
plosive Company  v.  Jenkins  and  Company  does  not  apply,  for  in  that 
case  there  was,  at  the  time  that  the  master  refused  to  sail  with  the 
plaintiff's  goods  on  board,  a  serious  danger  of  their  being  seized  and 
•confiscated  by  the  war  ships  of  the  belligerent  enemy  then  lying  in  and 
round  the  Port  at  which  he  landed  such  goods.  He  was  therefore, 
under  such  conditions,  justified  in  landing  the  goods  and  in  refusing 
to  carry  them.  In  the  case  just  quoted  the  master  had  a  reasonable 
and  well-founded  belief  that  the  vessel,  if  she  sailed  with  the  plain- 
tiff's goods  on  board,  would  be  stopped  and  the  goods  confiscated, 
whereas  in  the  present  case  the  master  of  the  Prometheus  had  no 
ground  for  entertaining  any  such  belief,  and  as  a  matter  of  fact 
did  not  entertain  any  such  belief.  The  special  case  will  now  be 
remitted  to  the  arbitrator,  who  will  guide  himself  in  making  his 
award  by  the  answers  which  I  have  given  to  the  questions  put  by 
him  to  me. 


Sect.  III.  The  Ship  for  Scientific  Exploration  of  the  North 
Pole. 

During  the  Kusso- Japanese  war  there  occurred  only  a  sin- 
gle question  as  to  a  vessel  for  scientific  purposes.  The  facts  are 
as  follows: 

On  the  28th  of  May,  1904,  the  Swedish  Minister  for  For- 
eign Affairs  announced  that  a  Eussian  steamer  was  about  to 
sail  for  the  North  Pole  on  scientific  explorations,  after  coaling 
at  a  port  of  Norway.  He  asked  the  Japanese  Minister  at 
Stockholm  if  such  coaling  would  be  considered  a  violation  of 
neutrality.  The  Japanese  minister  answered  that  the  Japanese 
regulations  regard  coal  as  contraband  only  when  from  its  des- 
tination or  other  circumstances  it  is  presumed  to  be  intended 
for  the  use  of  the  enemy's  army  or  navy.  Consequently  the 
case  mentioned  by  the  Swedish  Minister  for  Foreign  Affairs 
would  not  constitute  a  violation  of  neutrality. 


354  LAWS   OF   NAVAL   WARFARE.  [PART  III. 

Sect.   IV.     The   Independent  Affair. 

A  chartered  vessel  of  the  Osaka- Shosen-Kaisha,  loaded  with 
rice,  sake,  wine,  and  other  articles,  and  destined  to  Newch- 
waug,  entered  Chefoo,  where  the  Chinese  Custom  Officers 
treated  these  articles  as  contraband  goods,  and  demanded  that 
they  be  landed.  The  Japanese  Consul,  Mizuno,  protested 
against  it.  Dated  August  30,  1904,  he  despatched  a  telegram 
to  Mr.  Uchida,  the  Japanese  Minister  to  Peking,  in  the  follow- 
ing sense: 

"  The  Independent,  a  chartered  vessel  of  the  Osaka-Shosen- 
Co.,  destined  to  Newchwang  and  loaded  with  rice,  sake, 
money,  and  other  contraband  goods,  entered  here  to-day  and 
was  commanded  by  the  Chefoo  Customs  to  land  her  cargo.  I 
asked  of  the  Chief  of  Customs  the  reason,  and  was  answered 
that  there  were  instructions  not  to  allow  the  passing  of  contra- 
band goods  from  neutral  ports  (as  Hongkong)  to  belligerent 
territories,  and  of  course  it  must  be  treated  as  if  they  were 
sent  from  a  belligerent  country.  I  protested  that  a  belligerent 
state  has  the  right  to  carry  goods  necessary  for  war,  and  the 
customs  have  no  reason  to  interfere.  Finally  it  was  agreed  to 
ask  the  commissioner  for  instructions,  and  not  to  interfere 
with  her  cargo  until  the  arrival  of  a  telegram  bearing  instruc- 
tions." 

On  the  morning  of  September  1st  Baron  Komura  received 
a  telegram  from  Minister  Uchida  that  Wai-wu-pu  promised 
him  to  despatch  on  the  following  day  instructions  through  the 
Commissioner  to  the  Taotai  and  President  of  the  Customs  to 
allow  the  departure  of  the  Independent.  Next  day  a  telegram 
came  from  Consul  Mizuno  with  the  information  that  the  Inde- 
pendent had  departed  for  Yingkow  without  objection. 

On  the  6th  of  October  Baron  Komura  sent  a  telegram  to 
Consul  Mizuno  asking  whether  it  was  some  special  overture 
made  to  the  Independent  in  allowing  her  departure  for  Newch- 
wang  or  whether  all  the  other  Japanese  merchantmen  entering 
Chefoo  thereafter  would  be  treated  in  the  same  way,  not  being 


CHAP.  II.,  SECT.  V.]      CLAIMS   FOR   DAMAGES.  355 

hindered   as   to   their   departure    or    compelled   to   land    their 
cargo. 

Dated  October  7,  1904,  Consul  Mizuno  reports  that  al- 
though neither  the  Taotai  nor  the  Commissioner  are  prepared 
to  commit  themselves  to  any  categorical  statement,  yet  they  as- 
sured him  that  they  would  treat  any  such  steamer  in  the  same 
way  as  the  Independent,  that  is  to  say,  would  not  interfere 
with  her  cargo. 


Sect.  V.     Claims  for  Damages  Caused  by  Capture. 

In  Japan  the  claim  for  damages  was  not  to  be  adjudicated 
by  a  Prize  Court.  For  this  purpose,  a  special  committee  was 
created  by  the  following  resolutions: 

RESOLUTION    OF    THE    CABINET    CONCERNING    COMPEN- 
SATION   FOR    DAMAGES    CAUSED    BY    CAPTURE. 

The  following  notification  was  received  from  the  Cabinet  on  the  14th 
day  of  the  5th  month  of  the  37th  year  of  Meiji: 

It  has  been  resolved  by  the  Cabinet  Council  that  compensation  for 
damages  incurred  on  account  of  capture  shall  not  be  adjudicated  by 
a  Prize  Court,  but  shall  be  decided  after  hearing  the  opinion  of  a  board 
to  be  specially  appointed  for  the  investigation. 

As  the  President  of  this  committee,  Dr.  Itchiki,  and  later, 
Dr.  Okano  were  elected.  One  of  the  members,  Mr.  S.  Naka- 
nisi  made  concise  inquiries  into  the  details  of  several  cases 
which  were  brought  to  the  committee.  Below  is  the  list  of  the 
cases. 

1.  The  case  of  Crusader.      (British.) 

2.  "  The  Kensington.      (British.) 

3.  "  The  Queen  Cristina.      (British.) 

4.  "  The  Mukden.      (Russian.) 

5.  "  The  Sheikh.      (British.) 

6.  "  The  Saxon  Prince.     (British.) 

7.  "  The  Si-shang.     (British.) 

8.  "  The  Eastry.      (British.) 

9.  "  The  Linchnden.      (British.) 


356  LAWS   OF  NAVAL   WARFARE.  [PART   III. 


Among  them  were  four  vessels  which  were  released  after  the 
discussion.  One  concerns  the  cargo  of  the  Russian  vessel 
Mukden.  Three  others,  concern  the  vessels  detained,  but  re- 
leased before  coming  to  the  ports  for  adjudication.  Only  one, 
the  Eastry  case,  was  accepted  by  the  committee,  and  conse- 
quently the  Japanese  Government  paid  the  compensation. 

The  inquiries  made  by  the  author's  learned  friends,  Drs. 
Okano  and  Itchiki  and  Mr.  Nakanishi,  members  of  this  com- 
mittee, show  that  the  work  they  accomplished  was  remarkably 
concise,  clear,  and  thoroughly  discussed. 

The  author  refrains  from  treating  all  of  them  in  this  work, 
as  they  will  be  specially  treated  in  a  separate  essay.  Only  a 
brief  account  of  some  of  the  cases  are  here  given. 

Case  I.     The  Crusader. 

R&ume'  of  the  report  of  the  committee  of  the  investigation  for  damages 

concerning  Prize  Officers,  on  July  31st,  1906. 

The  inquiries  were  made  concerning  the  claims  for  damages  in  the 
Crusader  incident.     The  details  and  their  effects  are  here  given. 

The  Crusader  is  a  British  ship  owned  by  the  Eskside  Steam  Ship- 
ping Company,  registered  tonnage  2744,  and  of  tonnage  4209.  On  the 
2nd  of  September,  1904,  she  departed  from  Portland,  Ore.,  U.  S.  A., 
with  timbers  on  board  for  Shanghai  and  Ta-koo,  China,  via  Moji  in 
Japan.  The  Imperial  Japanese  torpedo  boat  stopped  her  at  9.20  a.m. 
on  the  22nd  day  of  the  same  month  while  in  Tangarn  strait.  Dur- 
ing the  stop  the  captain  of  the  torpedo  boat  asked  the  master  of  the 
Crusader  as  to  the  ship's  destination.  The  master  said  that  the  des- 
tination was  Shanghai,  while  Japanese  subjects  on  board  the  vessel 
said  that  she  was  bound  for  Moji.  The  discrepancy  between  the  mas- 
ter's admission  and  that  of  the  others  aboard  made  necessary  an  ex- 
amination of  the  ship's  papers,  but  owing  to  the  rough  sea  it  was 
more  expedient  to  order  the  vessel  to  the  port  of  Hakodate.  As  the 
result  of  the  examination  which  was  ultimately  made,  she  was  al- 
lowed to  continue  her  voyage,  at  12.45  p.m.  on  that  day. 

Concerning  this  incident  the  owner  claimed  damages  through  the 
British  Minister  at  Tokyo.     The  claim  is  as  follows: 

That  the  Crusader  was  detained  on  two  occasions  by  Japanese  war 
vessels,  once  in  September,  1904,  and  again  in  March  last,  but  that 
the  owners  do  not  ask  for  compensation  for  the  second  of  these  in- 
cidents.    The  British  Minister  at  Tokyo  was  instructed  to  bring  this 


CHAP.  II.,  SECT.  V.]      CLAIMS   FOR   DAMAGES.  357 

claim  to  the  notice  of  the  Japanese  Government  and  to  take  into  con- 
sideration only  the  detention  of  five  hours  and  ten  minutes  suffered  by 
the  Crusader  at  Hakodate,  the  alleged  detentions  at  Moji  and  Woosung 
being  in  the  opinion  of  the  British  Government  too  remote  a  conse- 
quence of  the  vessel's  detention  at  Hakodate  to  warrant  their  inclu- 
sion. The  above-mentioned  period  of  detention  was  arrived  at  by  add- 
ing together  the  time  occupied  by  the  vessel  in  reaching  Hakodate 
from  the  point  at  which  she  was  stopped,  and  in  returning  subse- 
quently to  the  same  point,  and  the  time  during  which  she  remained  at 
anchor. 

A  belligerent  is  entitled  to  search  a  neutral  vessel  on  the  high  sea, 
and,  if  he  sees  fit,  seize  the  vessel  at  his  own  risk  and  take  her  be- 
fore a  Prize  Court.  This  involves,  however,  the  employment  of  ves- 
sels which  are  suitable  for  the  purpose,  and  if,  as  in  the  case  under 
discussion,  the  belligerent  employs  a  vessel  to  watch  for  contraband 
which  is  not  suited  for  the  purpose  and  does  not  enable  her  officers 
to  board  and  search  a  suspected  ship  while  she  is  running,  the  British 
Government  cannot  claim  that  the  belligerent  vessel  is  entitled,  on 
that  ground,  to  compel  the  ship  to  deviate  from  her  course  and  to 
enter  territorial  waters  in  order  that  she  may  be  overhauled  under 
more  favourable  circumstances. 

In  the  case  of  the  Crusader  the  deviation  was  only  trivial  and  the 
delay  consequently  small.  So  the  payment  of  a  small  compensation 
(£10  or  £20)  to  the  owners  of  the  steamer  would  fairly  recompense 
them. 

The  view  of  the  committee  is  as  follows: 

To  visit  and  search  a  vessel  is  the  right  of  a  belligerent  State,  and 
when  there  is  a  proper  reason  for  suspicion  it  is  quite  within  the  scope 
of  the  right  to  so  act.  And  further,  it  is  also  within  their  right  to 
bring  a  suspected  vessel  to  a  safe  place  where  the  visit  and  search 
can  be  safely  executed.  Now  the  ship  under  consideration  was  stopped 
where  the  conditions  of  sea  rendered  it  quite  impossible  for  her  to 
be  visited. 

The  current  of  Tsugarn  strait  is  two  or  three  knots,  and  when 
there  is  a  southwest  wind  the  rapidity  of  the  current  is  doubled.  The 
time  the  Crusader  was  stopped,  the  condition  of  the  sea  made  it  quite 
dangerous  for  both  the  vessels  and  torpedo  boat  to  stay  there.  So 
it  was  quite  right  on  the  part  of  the  Japanese  torpedo  boat  to  order 
the  said  vessel  to  some  safe  place  for  the  sake  of  the  safety  of  the 
vessel,   if  for  no  other  reason. 

(Signed)     K.  Okano, 
President  of  the  Committee  for  the  investigation  of 
damages  concerning  the  Prize  Cases. 


358  LAWS  OF   NAVAL   WARFARE.  '   [PART   III. 

Case  II.     The  Eastry. 
Summary  of  the  report  of  the  committee  on  the  18th  of  September,  1906. 

The  brief  statement  of  the  fact.  (For  the  concise  statement  of  the 
capture,  see  part  V.  the  released  vessels.) 

The  reasons  for  the  detention  of  the  vessel  were:  (1)  The  vessel 
had  carried  Cardiff  coal  under  fraudulent  papers  in  her  former  voyage 
to  Vladivostock  in  the  latter  part  of  November,  1904.  (2)  She  took 
the  route  via  Tsugarn  Strait  while  there  was  a  shorter  way  via  Pacific 
Ocean.  (3)  She  navigated  close  to  the  northern  coast  of  Tsugarn 
Strait,  as  if  she  intended  to  hide  herself  from  the  watch  of  the  Japa- 
nese Fleet.  But  she  was  released  after  no  sufficient  ground  was  found 
for  her  confiscation.  After  the  release,  the  owner  of  the  vessel  on 
August  17th,  1904,  claimed  damages  through  the  British  Minister  at 
Tokyo.    The  amount  of  the  claim  was  £818  8s. 

The  View  of  the  Committee. 
(1)  There  is  sufficient  ground  to  believe  that  on  her  former  voy- 
age she  carried  contraband  goods  to  Vladivostock  via  So-ya  Strait  but 
on  her  return  voyage  the  character  of  the  vessel  and  the  nature  of 
the  coal,  etc.,  found  on  board  were  quite  different.  In  a  prize  case, 
the  former  act  of  a  vessel  cannot  be  taken  as  ground  for  detention. 
(2)  Although  she  passed  Tsugarn  Strait,  there  were  many  who  took 
the  same  route  in  winter  time.  So  this  could  not  be  taken  as  the 
reason  for  detaining  her.  (3)  As  to  the  course  being  taken  close 
by  the  northern  coast,  it  is  not  deemed  to  be  the  reason  of  detention 
as  it  was  quite  right  to  take  this  course  if  the  current  of  the  strait 
be  considered.  So  there  was  no  ground  to  suspect  the  vessel  and  de- 
tain her.  And  consequently  the  claim  of  £290  12s.  4d.  should  be  paid 
as  damages. 

(Signed)      K.  Okano, 
President  of  the  Committee.- 
According  to  this  report,  the  said  damages  were  paid. 


CHAPTER   III. 
THE    BLOCKADE    OF    THE    LIAOTUNG    PENINSULA. 

Sect.  I.     Details  of  the  Blockade. 

On  May  20,  1904,  Mr.  Midzuno,  Japanese  Consul  at  Chefoo, 
cautioned  the  Japanese  Government,  stating  that  now  that 
Port  Arthur  is  nearly  isolated  from  other  ports  of  the  world, 
the  remarkable  leniency  with  which  the  Russians  treat  junks 
leaving  Port  Arthur  and  Dalny  and  the  sudden  increase  of 
telegrams  sent  from  Chefoo  to  St.  Petersburg,  all  leads  him  to 
surmise  that  they  have  started  a  system  of  carrying  official  and 
private  messages  between  Chefoo  and  these  places  by  junks. 
It  is  therefore  recommended  that  the  Japanese  naval  authori- 
ties take  vigorous  measures  against  junks  plying  in  these  waters, 
especially  those  having  Russians  on  board. 

By  that  time  the  Imperial  Navy  already  had  contemplated 
blockading  the  Liaotung  Peninsula,  and  the  following  declara- 
tion was  issued,  dated  May  26 : 

I  hereby  declare,  under  command  of  His  Imperial  Japanese  Maj- 
esty's Government  that  on  the  26th  day  of  the  5th  month  of  the  37th 
year  of  Meiji  the  entire  coast  of  that  part  of  the  Liaotung  Peninsula, 
Province  of  Shing-king,  China,  which  lies  south  of  a  straight  line 
drawn  between  Pi-tsz-wo  and  Pu-lan-tien  was  placed  in  a  state  of 
blockade  by  a  competent  force  of  His  Imperial  Japanese  Majesty's  ships 
and  is  now,  and  will  continue  to  be,  in  such  a  state  of  blockade;  and 
that  all  measures  authorised  by  the  Law  of  Nations  and  the  respective 
Treaties  between  the  Empire  of  Japan  and  the  different  neutral  Powers 
will  be  enforced  on  behalf  of  His  Imperial  Japanese  Majesty's  Govern- 
ment against  all  vessels  that  may  attempt  to  violate  the  blockade. 

Given  on  board  H.  I.  J.  M.'s  ship  Mikasa,  this  26th  day  of  the  5th 

month  of  the  37th  year  of  Meiji. 

(Signed)     Heihachiro  Togo, 

Commander-in-Chief  of  the  Combined  Fleet.  Vice- Admiral. 

359 


360  BLOCKADE.  [PART   HI. 

The  same  declaration  was  communicated  to  the  foreign  min- 
isters at  Tokyo  in  the  following  form: 

Baron   Komura    to    Foreign   Ambassadors   and   Ministers. 

» 

Department  of   Foreign  Affairs,   Tokyo,  May  26,   1904. 

MONSIEUE   LE    MlNISTRE: 

I  have  the  honour  to  inform  Your  Excellency  that  a  report  from 
the  Commander-in-Chief  of  the  Combined  Fleet  has  just  been  received, 
to  the  effect  that,  acting  under  command  of  the  Imperial  Government, 
he,  on  the  26th  instant  placed  in  a  state  of  blockade  the  entire 
coast  of  that  part  of  the  Liaotung  Peninsula,  Province  of  Shen-King, 
China,  which  lies  south  of  a  straight  line  drawn  between  Pi-tsu-wo 
and  Ru-lan-tien ;  I  enclose  herewith  a  copy  of  the  declaration  of  blockade. 

In  January,  1905,  the  area  of  the  region  blockaded  was  en- 
larged, the  following  being  the  declaration  thereof: 

I  hereby  declare,  under  command  of  H.  I.  J.  M.'s  Government,  that 
the  zone  of  blockade  announced  by  me  on  the  26th  day  of  the  5th 
month  of  the  37th  year  of  Meiji  is  now  changed  so  that  on  and  from 
the  1st  day  of  the  1st  month  of  the  38th  year  of  Meiji,  the  coast 
of  the  Liaotung  Peninsula,  Province  of  Shen-King,  China,  lying  west 
of  a  straight  line  drawn  from  South  Entry  Point  to  Wedge  Head  is 
placed,  and  will  continue  to  be,  in  a  state  of  blockade  by  a  competent 
force  of  His  Imperial  Japanese  Majesty's  ships;  and  that  all  measures 
authorised  by  the  Law  of  Nations  and  the  respective  Treaties  between 
the  Empire  of  Japan  and  the  different  neutral  Powers,  will  be  en- 
forced on  behalf  of  His  Imperial  Japanese  Majesty's  Government 
against  all  vessels  which  may  attempt  to  violate  the  blockade. 

Given  on  board  H.  I.  J.  M.'s  ship  Mikasa,  this  1st  day  of  the  1st 
month  of  the  38th  year  of  Meiji. 

Admiral  Togo  Heihachiro, 
Commander-in-Chief  of  H.  I.  J.  M.'s  Combined  Fleet. 

The  former  blockade  extended  only  as  far  north  as  the  line 
from  Pitszwo  to  Pulantien.  The  new  blockade  extended  up 
the  whole  west  coast  of  the  Peninsula,  and  evidently  includes 
Newchwang. 

Proclamation  Issued  by  the  Naval  Department. 
Until  further  orders,  no  vessel  will  be  allowed  to  enter  Talien  Bay, 
with  the  exception  of  ships  employed  by  the  Imperial  Government  or 


CHAP.  III.,  SECT.  II.]      MEDICAL   STUFF   FOR   PORT  ARTHUR.     361 

ships  which  carry  permits  from  the  Minister  of  War  or  the  Minister 
of  the  Navy  or  the  military  officer  in  local  command  or  the  naval 
officer  in  command. 

Vessels  entering  or  leaving  Talien  Bay  must  comply  with  the  rules 
fixed  by  the  military  officer  in  local  command  or  the  naval  officer  in 
command. 

(Signed)     Baron  Yamamoto, 
General   Terauchi. 
(Dated)  1st  day  of  1st  month  of  38th  year  of  Meiji. 

Several  days  later,  the  capitulation  of  Port  Arthur  was 
raised  under  the  following  declaration: 

'Notice  of  the  Navy  Department  Concerning  Abolition  of  the  Block- 
ade (Notice  No.  2,  issued  on  the  7th  of  the  1st  month  of  the  38th 
year   of   Meiji). 

A  report  has  been  received  that  the  Commander-in-Chief  of  the  Com- 
bined Fleet  has  declared  the  abolition  of  the  blockade  on  the  7th  day 
of  the  1st  month  of  the  38th  year  of  Meiji  as  follows: 

The  whole  of  Liaotung  Peninsula  having  been  occupied  by  us,  the 
blockade  declared  on  the  1st  day  of  the  1st  month  of  the  38th  year 
of  Meiji  has  been  abolished  from  this  day. 

So  much  for  the  general  statement  concerning  the  blockade 
of  the  Liaotung  Peninsula.  And  now  account  is  taken  of  the 
cases  involved  in  the  blockade  and  their  legal  discussion. 

Sect.  II.  Medicines  and  Medical  Stuffs  Destined  for  Port 
Arthur. 

During  the  blockade  the  following  two  wishes  were  cher- 
ished by  Kussia : 

(a)  To  import  into  Port  Arthur  medicines  and  medical 
stuffs. 

(b)  To  grant  regular  navigation  privileges  to  hospital 
ships  between  Liaotung,  Chefoo,  and  Shanghai. 

As  regards  the  former,  it  was  twice  demanded,  (1)  by  the 
French  Minister  at  Tokyo  on  Sept.  22,  1904,  and  (2)  by  a 
certain  British  newspaper  correspondent. 

As  to  the  latter,  Mr.  Bennett  Burleigh,  an  English  corre- 
spondent   for    the    Daily    Telegraph,    purchased    a    steamboat 


362  BLOCKADE.  [PART   III. 

named  the  Samson,  and  attempted  to  gain  access  into  Port 
Arthur,  but  in  vain,  owing  to  the  strict  watch  of  the  blockad- 
ing fleet.  Then  he  came  to  Shang-hai  and  published  the  fol- 
lowing manifesto: 

We  therefore  suggest  in  the  interests  of  suffering  humanity,  so> 
closely  protected  by  all  civilised  nations,  that  relief  should  be  or- 
ganised without  delay.  An  international  committee  should  be  formed 
to  send  medical  supplies  to  Port  Arthur  subject  to  the  Japanese  Gov- 
ernment approval.  The  method  of  transportation  to  be  adopted  is 
a  matter  entirely  for  the  consideration  of  the  Imperial  Japanese  Gov- 
ernment. We  may  mention  that  the  medical  necessaries  could  be 
placed  at  the  disposal  of  these  whom  the  Imperial  Japanese  Minister 
may  deem  it  wise  to  select  for  the  work  of  conveyance.  We  would 
further  represent  that  the  need  is  of  a  nature  so  urgent  as  to  have 
impressed  the  organisers  that  it  is  a  matter  for  the  world's  practical 
sympathy  in  which  we  ask  the  Empire  of  Japan  at  this  juncture  to 
join.  We  pray  that  you  will,  by  accepting  this  call  to  act  on  the 
committee,  help  to  thus  alleviate  the  present  indescribable  suffering 
of  those  unable  to  help  or  plead  for  themselves.  The  continuance  of 
the  accentuated  agony  does  not  affect  the  general  situation.  We  do 
not  desire  to  relieve  a  burden  which  is  the  sequel  to  peculiar  cir- 
cumstances, but  merely  to  secure  for  those  whose  desperate  condition 
requires  medical  attention  that  which  under  normal  conditions  is 
accessible  to  all,  alleviation  of  pain. 

We  further  point  out  that  there  are  also  within  the  besieged  city 
many    Chinese   who   have   been    accidentally    injured. 

We  may  further  mention  that  the  Imperial  Russian  Consul  General 
has  obtained  the  sanction  of  the  Emperor  of  Russia  to  the  relief  offered 
in  a  cable  reading:  "  Par  order  de  sa  Majeste  Imperial  vous  §tes  auto-rise" 
d'aceepter  au  nom  du  Gouvernement  Imperial  la  proposition  qui  vous 
a  et£  faite  et  d'exprimer  au  comite  la  vive  reconnaissance  de  la  Society 
de  la  Croix  Rouge  de  Russie."    Lamsdorff. 

He  sent  the  following  petition  directly  to  the  Headquarters, 
Tokyo,  without  passing  through  the  Japanese  Consul- General 
at  Shanghai: 

Gentlemen  : 

Please  bring  before  His  Majesty  the  following  petition: 

We   humbly   petition    Your    Imperial    Majesty    to    give    your    most 

gracious  consideration  to  the  following  memorial : 


CHAP.  III.,  SECT.  II.]      MEDICAL   STUFF   FOR   PORT  ARTHUR.    363 

That  there  is  a  deplorable  shortage  of  medical  stores  in  Port  Ar- 
thur is  an  admitted  fact.  This  statement  is  founded  upon  reliable 
information  of  refugees  and  newspaper  correspondents  returning  from 
the  besieged  city,  who  have  themselves  been  eye-witnesses  of  that  which 
they  relate. 

We  know  that  the  supply  of  anaesthetics  is  at  an  end.  That  alone 
may  give  an  indication  of  the  terrible  agony  of  those  whose  wounds 
require  surgical  treatment. 

It  is  a  condition  of  affairs  perhaps  unparalleled  in  the  history  of 
modern  warfare,  calling  for  immediate  action  of  an  exceptional  na- 
ture. We  therefore  pray  that  Your  Majesty,  in  the  interests  of  suf- 
fering humanity,  so  closely  protected  by  your  forces  on  land  and  sea, 
may  be  pleased  to  grant  our  humble  request  that  relief  should  be 
organised  without  delay.  An  International  Committee  has  been  formed 
to  send  medical  supplies  to  Port  Arthur,  subject  to  Your  Imperial 
Majesty's  approval.  The  method  of  transportation  to  be  adopted  is 
a  matter  entirely  for  the  consideration  of  Your  Imperial  Majesty's 
Government.  We  may  humbly  mention  that  generous  donors  have  al- 
ready offered  the  medical  necessaries,  which  could  be  placed  at  the 
disposal  of  those  whom  Your  Imperial  Majesty's  Ministers  may  deem 
it  wise  to  select  for  the  work  of  conveyance.  We  would  humbly  repre- 
sent to  Your  Imperial  Majesty  that  the  need  is  of  a  nature  so  urgent 
as  to  have  impressed  the  members  of  the  committee  that  it  is  a 
matter  for  the  world's  practical  sympathy,  in  which  we  ask  the  Em- 
pire of  Japan  at  this  juncture  to  join. 

We  pray  Your  Imperial  Majesty  to  accede  to  our  petition,  and  thus 
alleviate  the  present  indescribable  sufferings  of  those  unable  to  help  or 
plead  for  themselves. 

The  continuance  of  the  accentuated  agony  does  not  affect  the  gen- 
eral situation.  WTe  do  not  desire  to  relieve  a  burden  which  is  a  se- 
quel to  peculiar  circumstances,  but  merely  to  secure  for  those  whose 
desperate  condition  requires  medical  attention  that  which,  under  nor- 
mal conditions,  is  accessible  to  all,  alleviation  of  pain. 

We  would  most  humbly  point  out  that  there  are  also  within  the 
besieged   city   many   Chinese   who   have   been    accidentally    injured. 

We   remain  Your   most  Gracious   Majesty's   most  humble   servants, 

(Signed)     Bennett  Burleigh, 
Louis  Spitzel, 
Baeon  Ward. 

Kindly   reply   through  your   Consul   at   Shanghai. 

(Signed)     Bennett  Burleigh, 
Louis  Spitzel, 
Baron  Ward. 


364  BLOCKADE.  [PART   III. 

The  object  of  the  petition  was  philanthropic.  But  the  Japa- 
nese Government  answered  to  this  petition  that  the  martial 
movement  forbade  them  from  expressing  their  consent,  and  that 
if  there  was  real  want  of  supplying  the  besieged  with  medicines, 
they  would  perform  that  service  on  proper  occasions.  It  was 
quite  right  on  the  part  of  Japan  from  the  point  of  view  of  Inter- 
national Law,  to  which  this  one  added  precedent  is  joined.  It 
will  be  easily  seen  that  the  Japanese  measure  was  exceedingly 
wise  in  reading  through  the  following  case,  in  which  the  actual 
intention  of  the  proposal  is  fully  brought  into  light : 

Case  I.     The  Samson  Case.1 
Alexander  Pavlow  v.  Thomas  C.  B,.  Ward. 
Published  in  the  N.    C.  Herald  and   S.   C.   &   C.  Gazette  on  the  23rd 
of  June,  1905. 

(The  abstract  of  the  text  of  the  trial  and  the  decision.) 

On  the  21st  of  June,  1905,  Shanghai,  the  case  is  tried  before  Mr. 
Justice  de  Sansmarez,  and  Messrs.  H.  C.  Norris,  R.  S.  Freemen,  E. 
T.  J.  Blount,  W.  R.  Parkin,  W.  J.  Greeson,  Jury. 

Mr.  R.  N.  McLeod,  of  Messrs.  Stokes,  Piatt  and  Teesdale,  appeared 
for  the  plaintiff,  and  Mr.  T.  Morgan  Phillips,  of  Messrs.  Drummond, 
White- Cooper  and  Phillips,  for  the  defendant. 

Mr.  McLeod  said  that  this  was  a  claim  for  damages  of  Tls.  10,000 
for  wrongful  conversion  by  the  defendant  of  the  S.  S.  Samson,  the 
property  of  the  plaintiff. 

The  pleading  disclosed  the  statement  of  the  claim  as  follows: 

(1)      The  plaintiff  is  a  Russian  subject,  resident  in  Shanghai. 

(2)  The  defendant  is  a  British  subject  in  Shanghai.  (3)  On  the 
30th  day  of  January,  1905,  the  steamship  Samson  was  registered  at  his 
Britannic  Majesty's  Consulate-General  in  Shanghai  as  a  British  ves- 
sel, the  sole  property  of  the  defendant,  and  remained  so  registered  until 
the  13th  day  of  March,  1905.  (4)  During  the  whole  of  such  a  period 
the  plaintiff  was  the  beneficial  or  actual  owner  of  the  said  steamship. 
(5)  The  defendant  had  not,  during  such  period  nor  at  any  time,  any 
beneficial  interest  in  the  said  steamship.  (6)  The  defendant  knew 
during  the  whole  of  such  period  that  the  plaintiff  was  the  beneficial  or 
actual  owner  of  the  said  steamship.  (7)  The  defendant  has  fre- 
quently acknowledged  in  writing  that  he  had  no  beneficial  interest  in 

i  The  full  text  can  be  found  in  the  N.  C.  Herald  and  S.  C.  &  C.  Gazette,  June  23,  30, 
1905.     Here  the  important  point  only  is  quoted. 


CHAP.  III.,  SECT.  II.]      MEDICAL   STUFF  FOR   PORT  ARTHUR.     365 

said  steamship.  (8)  The  defendant  has  in  writing  admitted  that  the 
plaintiff  was  the  beneficial  or  actual  owner  of  the  said  steamship.  (9) 
The  plaintiff  has  frequently  demanded  from  the  defendant  a  transfer  by 
the  defendant  of  the  said  steamship  to  the  plaintiff  or  to  his  nominee, 
but  the  defendant  refused  and  failed  to  effect  such  a  transfer.  (10) 
On,  or  about  the  13th  day  of  March,  1905,  the  defendant,  without 
the  consent  or  authority  of  the  plaintiff,  sold  the  said  steamship,  the 
property  of  the  plaintiff,  to  the  Shanghai  Tug  and  Lighter  Company 
Limited,  for  the  sum  of  eighty  thousand  taels.  (11)  The  defendant 
has  never  accounted  to  the  plaintiff  for  this  sum.  (12)  By  reason  of 
such  matters  aforesaid  the  plaintiff  has  been  deprived  of  his  beneficial 
ownership  and  has  sustained  damage  amounting  to  one  hundred  thou- 
sand Shanghai  Tls.,  the  value  of  the  said  steamship. 

The  plaintiff  claims  the  sum  of  one  hundred  thousands  taels  and 
costs. 

Mr.   Morgan    Phillips   read  the   answer  as   follows: 

( 1 )  The  plaintiff  is  the  Russian  Minister  to  Corea,  now  resident 
in  Shanghai.  (2)  Paragraph  three  of  the  petition  is  admitted  but  the 
defendant  states  that  the  Samson  was  so  registered  at  the  plaintiff's 
request.  (3)  The  defendant  does  not  admit  paragraphs  4,  6,  7,  and 
8  of  the  petition.  (4)  In  answer  to  paragraphs  10,  11,  and  12  of  the 
petition  the  defendant  denies  that  he  sold  the  Samson  for  the  amount 
stated  or  that  the  plaintiff  has  sustained  the  damage  alleged.  The 
defendant  sold  the  Samson  for  the  sum  of  Tls.  57,000.  (5)  The  de- 
fendant further  denies  that  the  plaintiff  was  the  beneficial  or  actual 
owner  of  the  steamship  and  states  that  in  all  the  transactions  con- 
nected with  the  said  steamship  the  plaintiff  acted  as  the  representa- 
tive of  the  Russian  Government,  which  is  indebted  to  the  defendant 
for  a  sum  largely  exceeding  the  value  of  the  said  steamship.  In  the 
alternative  the  defendant  claims  to  set  off  against  the  plaintiff  under 
the  following  circumstances. 

On  or  about  October,  1904,  a  scheme  was  arranged  to  send  a  large 
quantity  of  medical  supplies  and  accessories  into  Port  Arthur,  os- 
tensibly under  the  auspices  of  an  International  Red  Cross  Society, 
but  with  the  real  intention  of  enabling  the  prolongation  of  defence. 
In  the  carrying  out  of  this  Scheme  the  plaintiff  agreed  with  the  de- 
fendant for  the  purchase  of  the  Samson  and  another  ship,  the  latter 
to  be  used  as  a  hospital  ship,  and  also  the  purchase  of  a  large  quan- 
tity of  supplies  and  accessories.  The  above  scheme  received  the  ap- 
proval of  the  Emperor  of  Russia  and  was  accepted  by  Count  Lamsdorff, 
the  Russian  Minister  for  Foreign  Affairs.  In  accordance  with  the  said 
agreement  the  plaintiff  purchased  the  Samson,  which  sailed  for  Port 
Arthur  on  or  about  the  27th  of  October,  1904,  but  was  detained  and 


366  '         BLOCKADE.  [PART   III. 

refused  access  to  Port  Arthur  by  the  Japanese  Government.  The  de- 
fendant agreed  to  purchase  for  the  sum  of  $200,000  Mexican  currency 
the  steamship  Elendale  to  be  used  as  a  hospital  ship  at  Port  Arthur, 
and  the  said  steamship  was  sent  to  Shanghai  to  the  order  of  the  de- 
fendant to  be  fitted  out  for  that  purpose.  The  medical  stores  re- 
quired were  purchased  by  the  defendant.  This  scheme  fell  through  by 
no  fault  of  the  defendant,  who  had  done  all  things  necessary  for  the 
carrying  out  of  the  same.  The  plaintiff  refused  to  take  over  the  Elen- 
dale and  the  defendant  was  forced  to  pay  the  sum  of  Tls.  40,000  for 
breach  of  contract  in  failing  to  complete  the  purchase  of  the  said 
ship.  The  plaintiff  has  still  left  unpaid  the  sum  of  Tls.  1000  on  ac- 
count of  the  medical  supplies.  The  plaintiff  agreed  to  pay  the  de-> 
fendant  the  sum  of  £20,000  to  procure  him  a  Russian  decoration  for 
his  work  done  in  connection  with  the  scheme,  and  has  offered  to  pay 
sums  on  account  of  the  said  amount. 

The  plaintiff  is  indebted  to  the  defendant  for  payment  inter  alia 
in  respect  of  insurance,  dock  charges,  stores  and  wages  for  the  cap- 
tain and  crew  of  the  Samson  to  the  amount  of  Tls.  11,255.84. 

SET  OFF.  TLS. 

Medical  accessories 1,000.00 

Payment  in  respect  of  liability  the  Elendale 40,000.00 

Agreed   remuneration 150,885.00 

Payments  in  respect  of  the  Samson 11,255.84 

203,140.84 
Sale   of  the   Samson 57,000.00 

Balance  due  to  defendant  Tls 146,140.84 

Mr.  Phillips,  the  counsel  for  the  defendant,  said  that  he  intended 
to  outline  briefly  the  case  of  the  defence.  He  referred  to  the  plain- 
tiff's career  in  the  British  Army,  he  having  been  an  officer  in  the  First 
Royal  Scots  Regiment,  and  served  on  the  staff  of  Lord  Roberts  dur- 
ing the  South  African  war.  Ward  was  a  Baron  of  the  Austrian  Em- 
pire. It  was  a  hereditary  barony  and  he  was  the  fourth  in  succes- 
sion. Counsel  then  gave  the  reasons  for  defendant's  leaving  the  army 
and  described  his  attempts  to  get  to  the  front  with  the  Japanese. 
After  failing  in  this  object  defendant  went  to  Tientsin,  where  he  met 
Colonel  Ogorodnikoff,  Russian  Military  Attache  in  Peking.  It  be- 
came known  that  Port  Arthur  was  badly  in  need  of  medical  sup- 
plies, and  defendant  and  the  Colonel  talked  over  the  matter  and  ar- 
ranged a  scheme  by  which  medical  supplies  could  be  got  into  the 
fortress.      Defendant    came   into    Shanghai    with   an  introduction   from 


CHAP.  III.,  SECT.  II.]      MEDICAL   STUFF   FOR   PORT  ARTHUR.     367 

the  Colonel  to  Mr.  Pavlow,  and  when  they  had  talked  over  the  mat- 
ter it  was  finally  arranged  that  the  scheme  should  proceed  on  the  fol- 
lowing lines.  A  Red  Cross  League,  supported  by  as  many  influential 
people  as  possible,  was  to  be  formed  at  home.  A  local  branch  was 
to  be  formed  out  here,  and  permission  was  to  be  sought  from  the 
Japanese  authorities  to  remove  the  wounded  and  sick  from  Port  Ar- 
thur by  means  of  a  hospital  ship.  A  small  vessel,  ostensibly  for  use 
as  a  press  boat  was  to  be  purchased  and  sent  to  Port  Arthur  to  find 
out  what  medical  supplies  were  needed,  and  then  a  larger  hospital 
ship  would  be  sent  in  with  the  medical  supplies  necessary  for  the 
successful  continuance  of  the  defence.  Mr.  Pavlow,  when  the  details 
of  the  scheme  were  finally  arranged,  promised  the  defendant  the  sum 
of  £20,000  for  his  work  in  connection  therewith,  a  not  unreasonable 
sum  when  it  was  remembered  that  on  the  success  of  this  scheme  de- 
pended to  a  large  extent,  the  safety  of  Port  Arthur.  The  medical  sup- 
plies were  needed  there  more  than  anything  else.  The  besieged  had 
plenty  of  food  and  ammunition,  but  the  urgent  need  of  medical  sup- 
plies caused  fearful  suffering  among  the  wounded  at  Port  Arthur. 
Counsel  did  not  think  he  need  discuss  the  importance  of  the  prolonga- 
tion of  the  defence  of  Port  Arthur.  If  it  held  out  it  kept  a  large 
Japanese  Army  engaged  on  land,  and  the  entire  Japanese  Fleet  on  the 
sea.  At  that  time  huge  military  operations  were  pending  at  Man- 
churia, and  the  Baltic  fleet  was  on  its  way  out.  Ultimately  Port 
Arthur  fell  earlier  than  it  might  have  fallen.  The  result  was  im- 
mediate. General  Nogi  assisted  Marshal  Oyama  with  his  army  at  the 
battle  of  Mukden,  with  the  utmost  effect.  It  was  the  Port  Arthur 
army  which  crushed  in  the  Russian's  right,  and  turned  the  defeat 
into  a  rout.  The  Japanese  Fleet  was  able  to  dock  for  necessary  re- 
pairs, and  then  meet  the  Baltic  fleet,  and  met  with  the  result  all  now 
know.  Up  to  that  time,  for  eleven  months  the  fleet  had  spent  a 
wearying  time  at  sea,  night  and  day  before  Port  Arthur,  and  it  was 
a  matter  of  absolute  necessity  for  them  to  go  into  dock  and  refit  them- 
selves before  meeting  the  fleet,  which  was,  on  paper,  very  powerful. 
It  was  therefore  very  important,  and  Mr.  Pavlow  recognised  it,  that 
Port  Arthur  should  be  able  to  continue  its  defence.  Part  of  the  ne- 
gotiations between  Mr.  Pavlow  and  his  Government  have  been  read  to 
the  jury,  and  of  course  the  whole  scheme  was  approved  by  the  Rus- 
sian Government  and  authorities.  The  amount  required  for  the  carry- 
ing out  of  the  scheme  was  fixed  roughly  at  Tls.  400,000.  It  was 
arranged  that  the  sum  should  be  at  the  disposal  of  Baron  Ward,  either 
in  London,  Paris  or  Shanghai.  Mr.  Pavlow  had  himself  admitted  that 
a  sum  of  tls.  400,000  was  alluded  to.  Counsel  then  went  into  a 
detailed   statement  of  how  this  amount  was  made  up,   and   described 


368  BLOCKADE.  [PART   III. 

the  purchase  of  the  Samson  and  Mr.  Bennett  Burleigh's  part  in  the 
scheme.  Burleigh,  Mr.  Pavlow  had  said,  was  going  in  the  interests 
of  Russia,  as  a  sort  of  a  counterblast  to  the  other  papers  which  had 
not  a  favourable  impression  of  the  condition  of  the  port  at  that  time. 
Burleigh  was  going  in  the  interests  of  Russia,  and  the  jury  had  heard 
what  Mr.  Pavlow  had  said  of  him. 

The  defendant,  T.  R.  C.  Ward,  when  sworn,  said  he  was  a  Baron 
of  the  Austrian  Empire.  He  was  formerly  a  Lieutenant  in  the  Royal 
Scots  Regiment,  and  served  in  the  South  African  war  on  Lord  Roberts' 
staff.  He  was  invalided  out  of  the  service  in  April,  1902.  In  Feb- 
ruary, 1904,  on  the  outbreak  of  war,  he  came  out  to  Japan  to  see 
active  service  if  possible.  He  endeavoured  to  get  to  the  front,  but  was 
informed  that  he  could  not  do  so  unless  in  the  capacity  of  military 
attache,  or  war  correspondent.  He  obtained  a  position  as  correspon- 
dent, and  was  invited  to  go  on  the  Manshu  Maru,  which  it  was  thought 
might  see  the  fall  of  Port  Arthur.  There  were  about  fifty  gentlemen 
on  board,  military  attaches  and  correspondents,  and  they  had  a  pleas- 
ant time  for  some  weeks,  in  the  inland  sea.  Afterwards  they  went  to 
Korea,  calling  at  Chemulpo,  Seoul,  and  Chinampo.  Witness  found  at 
Chinampo  that  the  wireless,  supposed  to  be  at  work  on  the  vessel 
was  really  non-existent,  and  that  messages  which  he  thought  were 
despatched  never  reached  their  destination.  Witness  left  the  ship  at 
Chinampo  in  July,  and  came  straight  to  Shanghai.  He  then  went  to 
Tientsin  to  try  to  see  active  service  on  the  Russian  side.  He  was  not 
fully  satisfied  with  the  treatment  he  had  received  from  the  Japanese. 
Witness  went  to  see  Colonel  Ogorodnikoff,  Russian  military  attache  at 
Peking,  and  tried  to  get  a  passport  to  go  to  the  Russian  front.  Later 
on  he  relinquished  the  idea  of  newspaper  work.  He  was  at  Tientsin 
for  two  months,  and  an  attache  got  him  a  permit  for  three  weeks. 
Witness  discussed  military  affairs  with  him,  and  found  that  the  in- 
telligence of  the  whole  staff  was  very  bad.  He  made  certain  sugges- 
tions which  the  colonel  adopted,  and  he  asked  witness  to  stay  there  and 
help  him.  While  witness  was  at  Tientsin  news  was  received  from  the 
Russian  Consul  at  Chefoo  that  medical  supplies  were  badly  wanted 
at  Port  Arthur.  The  Consul  tried  to  send  in  ten  junks,  which  were 
captured  by  the  Japanese.  Colonel  Ogorodnikoff  said  it  was  of  the 
utmost  importance  that  medical  supplies  should  be  got  into  Port 
Arthur.  It  was  certainly  necessary  for  the  prolongation  of  the  defence 
that  these  supplies  be  sent  in.  They  discussed  the  matter  together, 
and  also  discussed  in  rough  outlines  a  scheme  to  get  in  supplies. 
About  the  middle  of  September  (the  15th)  several  war  correspondents 
came  down  from  Liaoyang.  The  matter  had  been  discussed  about  the 
12th  of  September,  but  had  been  talked  over  for  about  a  week  then. 


CHAP.  III.,  SECT.  II.]   MEDICAL  STUFF  FOR  PORT  ARTHUR.  369 

The  original  idea  was  slightly  different,  and  they  did  not  think  of 
sending  a  press  boat  into  Port  Arthur.  They  were  going  to  send  a  small 
Chef oo  steamer  to  run  the  blockade  and  to  get  the  necessary  informa- 
tion. On  the  16th  of  September  several  war  correspondents  arrived, 
and  among  them  Mr.  Bennett  Burleigh.  Witness  knew  Bennett  Bur- 
leigh in  South  Africa,  and  he  asked  him  what  he  was  going  to  do 
for  the  rest  of  the  time  of  the  war.  Burleigh  said  that  he  was  going 
to  try  and  get  a  despatch  boat,  and  run  around  about  Port  Arthur. 
This  suited  witness  very  well  indeed,  and  he  told  Burleigh  that  he 
would  get  him  a  despatch  boat  which  would  cost  him  absolutely  noth- 
ing on  one  condition;  that  he  would  find  out  what  medical  supplies 
were  wanted,  and  the  number  of  sick  and  wounded  there.  Witness 
told  him  at  the  same  time,  as  he  wanted  to  find  out  why  witness  wanted 
to  do  this,  that  a  rich  Russian  wanted  to  find  out  these  details  for 
charity's  sake,  and  that  an  International  Committee  was  being  formed 
to  send  things  into  Port  Arthur  under  the  Red  Cross.  Burleigh  was 
then  unaware  that  the  whole  scheme  was  a  Russian  affair,  and  ac- 
cepted the  conditions.  Witness  tried  to  get  a  suitable  boat  at  Chefoo 
and  Tientsin,  but  without  success,  as  there  was  nothing  available  that 
would  suit  the  purpose.  He  told  Colonel  Ogorodnikoff  that  he  would 
leave  for  Shanghai  and  try  to  find  a  boat  there.  The  Colonel  gave 
him  letters  to  Mr.  Pavlow  at  Shanghai.  Witness  then  came  to  Shang- 
hai and  saw  Mr.  Pavlow.  He  arrived  on  the  14th  of  October  and 
saw  Mr.  Pavlow  that  day.  They  did  not  discuss  the  matter  then,  but 
talked  about  what  had  happened  in  Tientsin  and  Peking.  On  the 
15th  he  talked  over  the  whole  matter  with  Mr.  Pavlow,  who  told  him 
he  had  received  a  telegram  for  the  Colonel  about  the  whole  transac- 
tion. Witness  had  handed  in  the  Colonel's  introduction  on  the  14th. 
He  received  a  letter  from  Mr.  Pavlow  on  the  14th,  the  day  he  ar- 
rived, and  it  was  arranged  that  they  should  meet.  Mr.  Pavlow  asked 
Bennett  Burleigh  and  witness  to  tiffin  next  day.  Burleigh  had  come 
to  Shanghai  the  same  day,  as  witness  had  telegraphed  for  him.  Wit- 
ness and  Burleigh  went  to  lunch,  and  discussed  the  matter  afterwards. 
Burleigh  only  stayed  for  a  short  time.  He  listened  only  to  that  part 
of  the  scheme  which  concerned  him.  Witness  had  not  told  Burleigh 
exactly  how  things  stood.  He  and  Mr.  Pavlow  discussed  the  matter  for 
about  three  hours,  and  the  whole  scheme  was  laid  before  the  plaintiff. 
Mr.  Pavlow  then  wired  to  St.  Petersburg  to  get  confirmation  of  the 
whole  arrangements.  The  scheme  was  formed  with  the  object  of  get- 
ting hospital  supplies  into  Port  Arthur.  An  International  Red  Cross 
Society  was  to  be  formed,  under  whose  auspices  supplies  were  to  be 
sent  in. 

Burleigh  was   to   be  on  the   despatch   boat  trying  to  get  informa- 


370  BLOCKADE.  [PART   III. 

tion  out  of  Port  Arthur  as  to  the  medical  supplies,  and  especially  the 
number  of  people  wounded.  From  this  information  a  list  would  be 
made,  and  it  would  be  seen  what  sort  of  a  ship  was  required. 


Sect.  III.     On  the  Establishment  of  a  Hospital  Liner. 

Under  the  date  of  May  21,  1904,  the  French  Minister  at 
Tokyo  sent  a  letter  to  our  Foreign  Minister,  asking  Japan 
if  she  had  any  objection  to  the  establishment  of  a  hospital  liner 
between  Port  Arthur,  Chefoo,  and  Shanghai  to  transport  the 
sick  and  wounded.  He  proposed  the  Mongolia,  the  Kussian  hos- 
pital ship,  to  be  one  of  the  vessels. 

The  answers  sent  in  from  military  and  naval  authorities 
concerning  the  proposal  were  as  follows : 

Baron  Yamamoto,  the  Naval  Minister,  to  Baron  Komura. 

May  30,  1904. 
Although  concerning  the  Russian  floating  hospital  referred  to  in 
despatch,  the  answer  has  already  been  made,  since  the  Commander-in- 
Chief  of  the  Combined  Fleet  has  declared  a  blockade  along  the  coast 
of  Shih-King-Shih  of  China,  and  the  southern  part  of  Liaotung  Penin- 
sula, the  said  hospital  ship  cannot  hereafter  be  exempted  from  the 
obligations  accompanying  the  blockade.  I  ask  you  to  transmit  infor- 
mation to  this  effect  to  the  French  Minister. 

Mr.  Terauchi,  Minister  of  the  Military  Department,  to  Baron  Komura. 

June  1,  1904. 
I  acknowledge  the  receipt  of  your  despatch,  dated  the  25th  inst., 
along  with  the  text  of  the  French  Minister's  proposal  concerning  the 
Russian  floating  hospital.  Assuming  that  the  Russian  wounded  and 
sick  are  to  be  found  at  Chefoo,  their  transportation  on  board  a  float- 
ing hospital  to  Shanghai  seems  to  need  no  such  special  notification  as 
that  addressed  to  our  Government,  considering  the  fact  that  the  stipu- 
lations of  the  conference  already  contain  express  sanction  thereto;  so 
that  I  cannot  help  suspecting  that  the  Russian  anxiety  to  install  a 
hospital  liner  between  Chefoo  and  Shanghai  is  a  contrivance  of  the 
Governor-General  of  the  Far  East  to  thereby  add  to  the  capacity  of 
transportation  enjoyed  by  the  Siberian  Railway,  which,  if  true,  must 
be  a  breach  of  the  treaty,  article  4,  concerning  the  application  to  mari- 
time warfare  of  the  principles  of  the  Geneva  Conference  of  August  22, 
1864,    according  to    which    stipulation,   a    hospital   ship    should    not    be 


CHAP.  III.,  SECT.  IV.]      BLOCKADE   RUNNERS.  371 

used  for  military  purposes,  nor  should  interfere  in  any  way  with  the 
interests  of  a  belligerent.  Therefore,  we  cannot  comply  with  the  Rus- 
sian proposal,  which  is  apparently  intended  to  contribute  to  the  com- 
munication with  the  field,  by  means  of  the  Mongolia,  over  the  sea 
where  Russians  have  absolutely  no  control.  Moreover,  considering  the 
fact  that  there  is  no  Russian  hospital  in  Chefoo,  the  hospital  ship 
in  question  must  have  been  implicitly  intended  for  the  sending  back  of 
Russian  wounded  and  sick  over  sea  from  the  Manchuria  field,  or  from 
the  besieged  Port  Arthur  and  Kin-chau  Peninsula;  thus  impeding  our 
advantages  and  promoting  theirs  in  Manchuria.  On  the  above  grounds, 
a  notification  should  be  sent  to  the  Russian  Government  to  the  effect 
that  our  Imperial  Government  cannot  recognise  in  the  Mongolia  those 
special  privileges  due  to  a  hospital  ship  according  to  the  stipulations 
of  the  Conference. 

For  these  reasons,  the  Japanese  Government  refused  to  con- 
sent to  the  proposal.  It  is  quite  correct  to  reject  such  a  pro- 
posal on  the  part  of  Japan.  Note  that  in  this  one  principle 
is  added  by  actual  case  to  the  rules  of  the  blockade. 

Sect.  IV.     Blockade  Runners. 

That  the  blockade  was  not  prompted  from  the  commercial 
point  must  be  self-evident  when  the  non-commercial  but  purely 
naval  nature  of  the  port  is  considered.  During  the  war,  Dalny, 
another  port  within  the  same  zone,  was  not  visited  by  any  neu- 
tral ships,  and  along  the  whole  stretch  of  the  blockade  no  trad- 
ing port  was  to  be  found.  Thus,  the  motive  underlying  the 
blockade  was  not  to  intercept  the  communication  of  any  neutral 
steamship,  but  to  prevent  Chinese  junks  from  doing  anything 
contributing  to  the  enemy's  efficiency,  such  as,  for  instance, 
the  sending  of  military  despatches,  etc.  The  blockade  met, 
however,  with  quite  a  number  of  blockade  runners ;  the  methods 
they  resorted  to  being  set  forth  in  the  following  report: 

The  Russian  communication  between  Chefoo  and  Port  Arthur  is 
still  maintained  by  means  of  junks.  The  common  method  they  resort  to 
to  evade  our  inspection,  is  to  suspend  empty  petroleum  cans  containing 
necessary  documents,  covered  with  pebbles,  down  from  the  bottom  of 
the  junks. 


372  BLOCKADE.  [PART   III. 

In  such  a  way  communications  were  conveyed  to  Port  Arthur. 
Here  is  an  article  well  showing  what  these  blockade  runners  would  do. 

The  blockade  of  Port  Arthur  is  gradually  being  drawn  tighter,  and 
a  supreme  effort  is  being  made  to  effectively  shut  off  communication, 
particularly  between  the  city  and  the  Chinese  coast.  Junks  are  being 
overhauled  right  and  left,  and  the  Chinaman  who  succeeds  in  getting 
his  vessel  within  hailing  distance  of  the  Liaotung  Peninsula  is  a  won- 
der. The  increasing  severity  of  the  blockade  is  in  line  with  admis- 
sions of  the  Japanese  just  after  the  failure  of  the  last  big  attack  on 
Port  Arthur,  when  it  was  practically  announced  that  future  efforts 
would  be  directed  towards  drawing  an  impenetrable  cordon  about  the 
citadel  on  the  seaside. 

The  elusive  junk  with  its  cunning  Celestial  sailor,  and  the  way  it 
successfully  came  and  went,  has  puzzled  Admiral  Togo  and  his  fleet, 
but  the  Admiral  is  now  getting  a  line  on  the  naughty  skippers,  and 
his  torpedo  boats  scout  the  seas  day  and  night,  ready  to  pounce  upon 
unwary  victims. 

Three  hundred  junks  or  more  have  been  taken  in  tow  during  the 
last  few  days,  according  to  the  best  information,  most  of  them  being 
escorted  to  Dalny.  The  protestations  of  their  navigators  are  of  no 
avail,  be  they  to  the  effect  that  they  were  bound  for  Dalny  anyhow, 
or  that  they  were  merely  out  for  a  sail  on  pleasure  bent. 

The  base  of  operations  in  rounding  up  this  indiscriminate  collec- 
tion of  shipping  is  the  Miautau  Islands.  Here  the  fleet  has  a  sort 
of  headquarters.  There  is  a  repair  station  located  on  one  of  the 
islands,  where  minor  breakages  are  fixed  up,  and  where  the  torpedo 
boats  and  smaller  craft  find  shelter. 

Merchant  steamers  on  their  regular  runs  from  Chefoo  north  do  not 
escape  the  vigilance  of  the  ocean  sentinels.  One  ship  arriving  from 
Niuchwang  the  latter  part  of  last  week  was  held  up  no  less  than  three 
times  on  her  way  down.  The  much  talked-of  blockade  is  becoming 
such  in  fact,  and  news  from  Port  Arthur  is  sifting  through  slowly. — 
Chefoo  Daily  News,  on  5  Oct.,  1904. 

Among  many  blockade  runners  seized  upon,  a  few  of  the 
most  noteworthy  cases  are  epitomised  below. 

On  August  4,  five  Eussians  were  caught  on  their  way 
from  Pigeon  Bay  to  Chefoo,  one  of  whom,  a  Russian 
officer,  had  about  him  180  letters,  besides  one  addressed 
to  Kuropatkin,  and  also  two  Greeks,  who  gave  every  appear- 
ance of  being  spies.  The  case  brought  forth  no  international 
trouble. 


€HAP.  III.,  SECT.  V.]       AN    OBSERVATION.  373 

On  August  16,  seven  Kussian  officers,  breaking  the  block- 
ade, betook  themselves  to  Chefoo,  on  which  occasion  the  Japa- 
nese Consul  at  Chefoo  reminded  the  Chinese  Government  of 
proper  precautions. 

Besides  these,  several  other  ships  broke  the  blockade,  but 
these  will  be  treated  in  Part  V. 


Sect.  V.  Legal  Problems  Involved  in  the  Blockade  of 
Liao-tung. 

The  following  is  Professor  Lawrence's  critique  on  the  block- 
ade of  Liao-tung : 1 

It  has  become  a  general  practice  to  allow  a  fixed  time  from  the 
commencement  of  the  blockade,  for  neutral  ships  already  in  the  har- 
bour to  leave  it  unmolested,  and  sometimes  for"  those  outside  to  enter. 
This  has  always  been  done  in  recent  wars,  when  a  blockade  has  been 
instituted  soon  after  the  commencement  of  hostilities,  or  in  such  cir- 
cumstances that  neutral  shipmasters  can  have  little  or  no  warning. 
Whether  it  would  be  expected  in  an  unusual  case,  like  the  blockade  of 
Port  Arthur  and  the  Liao-tung  Peninsula  proclaimed  by  Admiral  Togo 
on  May  26,  may  be  considered  doubtful.  Ever  since  the  beginning  of 
February  the  Japanese  Fleet  has  ridden  triumphant  in  these  waters, 
and  made  attack  after  attack  on  the  great  Russian  naval  base.  There 
can  hardly  have  been  a  neutral  seaman  in  the  world  who  did  not 
know  for  weeks  before  the  proclamation  of  the  blockade  that  a  voyage 
to  Port  Arthur  would  be  a  most  risky  experiment.  But  putting  aside 
anomalous  cases,  days  of  grace  are  expected  by  neutrals.  Generally 
the  indulgence  is  confined  to  ships  coming  out  in  ballast,  or  with 
•cargo  laden  before  the  commencement  of  the  blockade. 

This  is,  however,  somewhat  out  of  the  way,  for  the  absence 
of  any  mention  about  days  of  grace  in  the  Japanese  declara- 
tion by  no  means  shows  that  such  a  measure  was  not  taken  on 
Japan's  part. 

In  fact,  Japan's  intention  at  that  time  to  afford  sufficient 
days  of  grace  to  foreign  ships,  if  any  were  found  thereabouts, 
could  have  accomplished  practically  nothing;   for  there   were 

1  Lawrence,  War  and  Neutrality,  Chap.  III.,  p.  60. 


374  LAWS   OF   NAVAL   WARFARE.  [PART  III. 

no  such  ships,  except  those  Chinese  junks  serving  the  enemy, 
and  rightly  Japan's  prizes. 

Some  would  perhaps  argue  that  no  blockade  is  necessary 
when  in  a  belligerent  port,  such  as  Port  Arthur  was,  and  that 
ships  bringing  provisions  to  the  enemy  may  be  safely  seized 
upon  as  carrying  contraband.  They  are  referred  to  what  is 
known  as  the  junk,  and  its  peculiar  way  of  assisting  the  enemy. 
As  long  as  the  junk  was  a  sort  of  neutral  ship,  the  blockade 
must  recommend  itself  as  a  right  measure  providing  against  it. 


CHAPTER    IV. 
CONCERNING    FLOATING   HOSPITALS. 


Sect.  I.     Negotiations  about  Japanese  Floating  Hospitals. 

Japan  installed  the  following  ships  as  her  floating  hospitals : 


Name  of  the  Vessel. 


Tonnage. 

Number  of 
beds. 

2,372.55 

319 

3,875.65 

431 

3,609.43 

442 

3,706.79 

536 

2,166.69 

232 

2,926.73 

222 

1,984.65 

206 

2,185.09 

230 

2,876.35 

304 

2,895.30 

238 

2,807.61 

314 

3,192.69 

336 

3,000.20 

252 

2,300.11 

210 

2,478.82 

227 

2,501.29 

288 

3,723.45 

442 

2,580.45 

298 

2,636.00 

226 

2,635.00 

218 

Yokohama  Maru 

Rossetta  Maru ........ 

Rohira  Maru 

Miyoshino  Maru ...... 

Doyo  Maru 

Dairen  Maru 

Choysang  Maru 

Konoura  Maru 

Koun  Maru 

Kwabafuto  Maru 

Toyei  Maru 

Kohina  Maru 

Jingu  Maru 

Ugo-Maru 

Kissho  Maru 

Aumi  Maru 

Daiichi-Kolohira  Maru 

Yamashiro  Maru 

Hakuai  Maru 

Kosai  Maru 


Negotiations  similar  to  the  following,  which  refer  to  the 
Rossetta  Maru,  were  carried  out  in  the  case  of  each  of  the 
above-named  floating  hospitals: 

On  the  10th  of  Feb.,  1904,  Baron  Komura  sent  a  despatch 
to  Mr.  Takahira  saying  that  the  Imperial  Government  equipped 
the  Rossetta  Maru  as  a  military  hospital  ship  to  be  used  exclu- 
sively for  the  service  of  the  wounded,  sick,  and  shipwrecked, 
and  that  the  United  States  Government  would  communicate 
this  fact  to  the  Russian  Government  in  accordance  with  Arts. 

375 


376  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

I.  and  II.  of  the  Convention  for  Application  to  Maritime  War 
of  the  Principles  of  the  Geneva  Convention. 

This  instruction  was  carried  out  by  Mr.  Takahira.  On  the 
23rd  June,  1904,  Mr.  Inouye,  the  Japanese  Minister  at  Berlin, 
sent  a  report  enclosing  the  following  note: 

( Enclosure. ) 
American  Embassy,  St.  Petersburg,  June  20,  1904. 
Youb  Excellency: 

I  have  the  honour  to  inform  Your  Excellency  that  at  the  instance  of 
the  Japanese  Minister  at  Washington,  transmitted  through  the  Depart- 
ment of  State,  I  have  informed  the  Russian  Government  of  the  equip- 
ment of  the  steamer  Rosse'tta  Maru  by  the  Japanese  Government  as  a 
floating  hospital  of  the  Red  Cross,  in  conformity  with  the  stipulations 
of  The  Hague  Convention,  and  I  have  to-day  received  a  note  from  the 
Imperial  Ministry  for  Foreign  Affairs  stating  that  the  Russian  Gov- 
ernment had  transmitted  the  above  information  to  the  Imperial  Lieu- 
tenant in  the  Far  East,  who  had  taken  the  necessary  steps  for  the  official 
recognition  of  the  Rossetta  Maru  in  the  above-mentioned  capacity. 
I  am,  sir,  with  high  regard, 

Your  obedient  servant, 

(Signed)     Robert  S.  McCobmick. 
His  Excellency  Mr.  Inouye, 

Imperial  Japanese  Minister  at  Berlin,  etc. 

Sect.  II.  Opinions  of  the  Masters  and  Chief  Physicians  of 
Hospital  Vessels,  on  Questions  Relating  to  The  Hague  Conven- 
tion for  the  Application  of  the  Geneva  Convention  to  Maritime 
Warfare. 

Having  been  commissioned  by  the  Tokyo  Imperial  Univer- 
sity early  in  August,  1904,  to  make  inspection  of  matters  bear- 
ing upon  International  Law,  the  author  travelled  through  Na- 
goya,  Kyoto,  Osaka,  Himeji,  Matsuyama,  Kure,  Ujina,  Hiro- 
shima, Sasebo,  and  Nagasaki.  At  Ujina,  he  met  with  many 
physicians  of  the  floating  hospitals  and  consulted  with  them 
regarding  the  following  questions: 

1.  Reprehensibility  of  the  omission  of  Art.  X.  of  The  Hague  Con- 
vention for  Application  to  Maritime  War  of  the  Principles  of  the 
•Geneva  Convention. 


CHAP.  IV.,  SECT.  II.]      FLOATING   HOSPITALS.  377 

2.  How  to  make  a  hospital  ship  recognisable  by  night. 

3.  Is  there  any  need  of  colouring  a  neutral  hospital  ship  otherwise 
than  green  and  red? 

4.  For  a  hospital  ship  or  a  ship  not  a  hospital,  is  it  justifiable 
to  rescue  the  sick  and  wounded  by  venturing  into  the  place  of  combat? 
Or  is  such  conduct  to  be  allowed  only  after  the  combat? 

5.  The  disposal  of  the  wounded  and  sick  received  in  a  neutral  ship. 

Below  are  some  of  the  statements  obtained  in  response  to 
the  above  questions,  together  with  personal  opinions. 

I.  Repreliensibility  of  the  Omission  of  Article  X. 

"  The  wrecked,  wounded,  or  sick,  landed  at  a  neutral  port 
with  the  permission  of  local  authorities  of  the  neutral  gov- 
ernment, should  be  detained  there  to  prevent  them  from  taking 
up  arms  again,  unless  the  said  neutral  and  the  belligerents  have 
otherwise  contracted;  expenditures  for  drugs  and  detention 
being  chargeable  to  the  nation  to  which  the  said  wrecked  or 
wounded  belong."  Such  is  the  10th  Article  cancelled  accord- 
ing to  the  English  objection.  This  omission  is  rather  illogical, 
considering  that  Arts.  LVII.  and  LVIIL  of  the  regulations  of 
land-combat  passed  at  The  Hague  in  the  same  year,  still  exist 
with  just  the  same  purport  as  contained  in  the  omitted  article; 
though  we  are  well  aware  of  the  Habeas  Corpus  Act  which 
forbids  English  authorities  any  control  over  military  refugees. 
It  is  a  sheer  inconsistency  to  strike  out  one  and  to  spare  the 
other  of  the  two  similarly  intended  laws. 

Nothing  is  more  desirable  than  English  concession  on  this 
point,  so  as  to  remove  thereby  the  queer  discordance  between 
land  and  sea  regulations. 

All  the  commanders  of  our  hospital  ships  agree  with  the 
author  in  their  opinions. 

This  matter  will  be  discussed  later  under  the  title  of 
"  Refugees  in  Neutral  Territories." 

II.  How  to  Make  a  Hospital  Ship  Recognisable  by  Night. 
The    point   in    consideration   remains    still    practically    un- 
touched in  all  regulations  of  whatever  sort.     During  the  late 


378  LAWS   OF   NAVAL   WARFARE.  [PART   III. 

war  the  question  was  touched  on,  though  the  matter  ended 
without  any  result.     The  details  are  as  follows: 

The  proposal  of  the  Russian  Government  to  display  lights 
on  Hospital  ships  at  night. 

The  following  was  the  letter  from  the  French  Charge  d'Af- 
f aires  concerning  this: 

Legation  de  la  Republique  Franchise  au  Japon, 

Tokyo,  le  22  Aout,  1904. 
Monsieub  le  Baron  : 

Je  viens  d'etre  avise"  par  mon  gouvernement  que,  suivant  une  de- 
cision du  Ministere  de  la  Marine  Russe,  les  batiments  hospitaliers 
porteront  dans  la  nuit  sur  la  corue  d'artimon  ou  sur  le  batou  de  pavilion 
arriere  trois  feux  uerticaux,  ceux  d'en  haut  et  d'en  bas  etant  blances 
et  celui  du  milieu  etant  rouge. 

Conformement  aux  instructions  qui  me  son  addressees,  je  serai 
oblige  a  Votre  Excellence  de  vouloir  bien  porter  cette  information 
a  la  connaissance  des  Autorites  competentes. 

Veuillez  agrger,  Monsieur  le  Baron,  les  assurances  de  ma  tr£s  haute 
consideration,  /  g  jgne-  \ 

The  following  answer  was  made  by  the  Naval  Minister  to 

the  despatch  of  the  Foreign  Minister  concerning  the  point  in 

question : 

Received  Aug.  30,  1904. 

I  beg  to  inform  you  of  my  full  appreciation  of  the  purport  of  your 
despatch  regarding  the  lamps  of  the  Russian  hospital  ship.  To  the 
conferring  of  special  privileges,  due  to  a  hospital  ship,  on  the  hoist- 
ing of  certain  distinguishable  lamps,  our  Imperial  Navy  cannot  agree, 
being  apprehensive  of  various  possible  dangers  which  might  arise  as 
the  result  of  such  a  contrivance  being  availed  of  by  an  unprincipled 
enemy.  You  are  therefore  requested  to  notify  the  French  Minister 
that  our  Imperial  Navy  shall  be  perfectly  unrestricted  in  its  move- 
ments by  his  recent  notifications. 

On  being  notified  in  the  sense  above  expressed,  the  French 
Minister  again  sent  in  the  following  letter: 

Legation  de  la  Republique  Franchise  au  Japon, 

Tokyo,  le  2  Decembre,  1904. 
Monsieub  le  Baron  : 

Votre  Excellence  a  bien  voulu  me  faire  connaitre  par  sa  lettre  du 

3    Septembre    dernier    la    reponse    des    autorites    maritimes    a    la    noti- 


CHAP.  IV.,  SECT.  II.]       FLOATING   HOSPITALS.  379 

fication  des  dispositions  adoptes   par   la  Marine  Russe  pour   permettre 
de  reconnaitre  les  batiments  hospitaliers  pendant  la  navigation  du  nuit. 

Je  viens  d'etre  avise"  que,  malgre"  l'intention  manifested  par  le 
Gouvernement  Japonais  de  ne  pas  considerer  les  fanaux  allumes  la 
nuit  sur  les  navires  hospitaux  comme  suffisant  a  leur  conferer  les  privi- 
leges reconnus,  le  Gouvernement  Russe  maintenait  sa  decision  de  faire 
employer  les  signaux  distinctifs  specifies  dans  ma  communication  du  22 
Aofit. 

D'ordre  de  mon  Gouvernement,  j'ai  l'honneur  de  notifier  cette 
resolution  a  Votre  Excellence. 

Veuillez  agreer,  Monsieur  le  Baron,  les  assurances  de  ma  tr§s  haute 
consideration, 

(Signe)     J.  Harmand. 

Below  are  opinions  from  men  of  experience  on  the  point  in 
consideration : 

1.  The  colour-lamps  should  be  resorted  to,  because  the  glass-lamp 
with  a  cross  on  it,  decidedly  the  best  one  for  the  purpose,  would  be 
hardly  distinguishable  at  a  distance;  furthermore,  the  green  lamp 
should  be  used  if  a  hospital  ship  of  the  army,  and  a  red  lamp,  if  a 
Red  Cross  hospital;  and  two  of  such  lamps  should  be  hoisted  to- 
gether to  the  top  of  the  mast,  the  best  luminary  agency  doubtless  being 
electricity.  At  any  rate  light  is  the  only  recourse  in  such  cases,  pro- 
vided the  light  used  does  not  conflict  with  the  International  Regula- 
tions for  the  Prevention  of  Collision  of  Vessels.  (K.  Toda,  Chief  Physi- 
cian of  the  Choysan  Maru.) 

2.  While  sailing,  three  lamps  should  be  hoisted,  at  intervals  of  6 
ieet  lengthwise,  on  the  foremast  or  in  front  of  it.  If  the  vessels  are 
those  of  military  or  naval  hospitals,  the  three  lamps  should  be  two 
white  with  one  green  between  them,  and  if  those  of  the  Red  Cross 
hospital,  the  middle  lamp  should  be  red — the  construction  of  the  lamps 
and  their  location  being  the  same  as  in  the  case  of  steamships. 

While  at  anchor,  lights  as  described  above,  and  showing  as  far 
at  least  as  one  nautical  mile  in  every  direction,  should  be  placed  at 
the  most  exposed  places,  and  if  there  is  any  need  of  showing  their 
being  hospitals,  the  searchlight  used  for  the  nautical  semaphore  shall 
indicate  the  name  of  the  ship  on  the  blank  and  the  Red  Cross  on  the 
funnel.      (Y.  Tateyama,  Chief  Physician  of  the  Rossetta.) 

3.  While  sailing,  lights  visible  at  5  miles'  distance,  the  lights 
of  hospital  ships  belonging  to  either  of  the  belligerents  being  two  white 
with  one  green  between  them,  and  those  of  neutral  hospital  ships  two 
white   with   one   red    between    them,   should   be  hoisted   to    the   top    of 


380  LAWS   OF  NAVAL  WARFARE.  [PART   III. 

the  mast.  While  at  anchor,  lights  visible  at  a  distance  of  not  less 
than  one  mile  will  suffice.  As  a  means  of  their  being  recognisable  as 
hospital  ships,  the  signal  lamp  or  luminary  signal  may  be  resorted 
to.     (S.  Miyazaki,  Chief  Physician  of  the  Doyo  Maru.) 

4.  The  lamp  to  be  lighted  on  the  foremast  for  the  night  should  be 
red,  as  in  the  field  hospital.  As  for  a  special  device  for  making  the  fact 
of  their  being  hospital  ships  recognisable,  I  can  conceive  of  no  need 
whatever,  because  there  is  no  doubt  but  that  the  hospitals  of  any 
civilised  power  will  always  bear  the  enemy's  inspection,  owing  to 
their  being  absolutely  free  from  any  unfairness;  and  the  practice  of 
using  a  special  device  will  only  have  the  effect  of  making  other  in- 
dispensable signals  mistakable,  and  in  uncivilised  nationalities  where 
the  standard  of  morals  is  low,  will  lead  to  serious  inconveniences  in 
more  ways  than  one.  The  signal  lamp,  however,  must  be  said  to  be 
the  only  means  of  indicating  hospitals.  (T.  Yosimoto,  Chief  Physician 
of  the  Kohina  Maru.) 

5.  As  to  lights  indicating  hospital  ships  by  night,  such  colours  as 
have  been  mentioned  in  the  navy  or  in  the  regulations  to  prevent 
marine  collision  should  not  be  used.  (S.  Nagano,  Chief  Physician  of 
the  Shingu  Maru.) 

6.  Perhaps  the  best  device  is  to  hang  at  a  suitable  height  on  the 
stern  mast  green  and  white  signal  lamps  joined  lengthwise  with  an 
interval  of  6  feet,  the  size  of  the  said  lamps  being  the  same  as  those 
anchorage  lamps  on  the  fore-mast;  that  is,  of  a  magnitude  reaching 
a  distance  of  not  less  than  two  nautical  miles.  Green  and  white  put 
together  not  only  conflict  with  no  current  nautical  signal,  but  have 
a  peculiar  adaptability  because  of  their  far-reaching  light.  (Y.  Oku- 
mura,  Chief  Physician  of  the  Toyei  Maru.) 

7.  Electricity  is  recommendable.  A  hospital  ship  should  be  dis- 
tinguished by  a  bright  green  lamp  hoisted  at  the  tip  of  the  fore- 
mast, and  should  be  constant  in  brightness  and  visible  at  a  distance 
of  three  nautical  miles  on  a  clear  night.  If  there  is  no  fore-mast, 
it  should  be  placed  at  the  most  visible  point  in  the  prow,  and  not 
less  than  fifteen  feet  above  the  navigation-lamp  (required  by  the  Regu- 
lations for  the  Prevention  of  Marine  Collision,  II.,  1)  and  not  less 
than  five  feet  above  the  subsidiary  lamp  (IL,  5).  (S.  Nagao,  Chief 
Physician  of  the  Ko-un  Maru.) 

8.  A  series  of  five  or  more  red  lamps,  lengthwise  at  intervals  of 
about  two  metres,  should  be  placed  behind  the  fore-mast.  (R.  Sake- 
Nobu,  Chief  Physician  of  the  Kotohira  Maru.) 

9.  A  hospital  ship  should  be  distinguished  at  night  by  a  colour 
lamp,  whose  colour  and  luminant  magnitude  have  been  previously 
settled  upon.     It  should  be  recognisable  at  a  distance  of  from  three 


CHAP.  IV.,  SECT.  II.]      MARITIME   WARFARE.  381 

to  five  nautical  miles.     (F.  Santomi,   Chief  Physician  of  the   Haku-ai 
Maru. ) 

10.  Electricity  should  be  used.  If  each  hemisphere  of  an  easily 
recognisable  lamp  is  painted  in  the  same  way  as  the  flanks  of  the 
vessel,  a  hospital  ship  may  be  readily  distinguished.  Or  by  a  certain 
order  of  colour  lamps,  for  instance,  the  green  above  red,  or  vice  versa; 
stationed  at  a  certain  conspicuous  position,  for  instance,  up  on  the 
mast,  the  same  may  be  done.  (T.  Arakawa,  Chief  Physician  of  the 
Yokohama  Maru.) 

11.  By  night,  a  hospital  ship  should  be  distinguished  by  means  of 
three  lamps,  green,  red,  and  white,  after  the  colouring  of  the  flanks  of 
the  ship,  always  lighted  at  a  certain  distance  below  the  navigation  lamp 
on  the  fore-mast.     (S.  Otsuki,  Chief  Physician  of  the  Kitisho  Maru.) 

12.  In  the  face  of  the  enemy,  a  light  on  a  hospital  ship  betrays 
the  anchorage  of  the  fleet.  To  recall  an  instance,  while  our  ship  was 
off  Genzan,  Korea,  even  the  slightest  sign  of  light  was  prohibited  by 
the  naval  authorities.  Though  almost  intolerable  for  the  sick  and 
wounded,  especially  in  the  hot  season,  to  have  windows  and  apertures 
shut  up,  yet  under  such  circumstances  the  directions  of  the  authori- 
ties should  be  observed.  (T.  Watanabe,  Chief  Physician  of  the  Kaba- 
futo  Maru.) 

13.  By  night,  a  hospital  ship  should  be  distinguished  by  a  series 
of  lamps,  in  order  white,  blue  and  another  white,  stationed  lengthwise 
on  the  fore-mast.      (R.  Isyi,  Chief  Physician  of  the  Omi  Maru.) 

14.  A  hospital  ship  should  be  distinguished  by  attaching  a  Red 
Cross  electric  lamp  to  the  ordinary  lamp.  (U.  Komatsu,  Chief  Physi- 
cian of  the  Tailen  Maru.) 

15.  No  special  light  urill  be  necessary,  for  wherever  a  warship  hap- 
pens to  meet  another  vessel  it  throws  over  it  a  blaze  of  searchlight. 
(R.  Takda,  Chief  Physician  of  the  Kosai  Maru.) 

16.  Two  electric  lamps,  a  red  one  below  a  green,  if  possible  re- 
volving, should  be  placed  on  the  fore-mast.  To  distinguish  a  hospital 
ship,  an  international  system  of  electric  signals  should  be  settled  upon. 
(T.  Satomi,  Chief  Physician  of  the  Miyoshins  Maru.) 

Author's  opinion  agrees  with  No.  12  and  No.  15. 

III.  Is  There  Any  Need  of  Colouring  a  Neutral  Hospital 
Ship  Otherwise  Than  Green  and  Red? 

As  it  is  purely  of  a  practical  nature,  though  an  important 
part  of  a  treaty,  only  the  opinions  of  the  chief  physicians  of 
the  hospital  ships  will  be  quoted  without  any  discussion. 


382  LAWS   OF  NAVAL   WARFARE.  [PART   III. 


1.  No  such  device  will  be  necessary,  its  special  flag  being  of  suffi- 
cient effect.      (The  Kohina  Maru.) 

2.  Of  the  same  opinion  as  the  above.      (The  TJgo  Maru.) 

3.  A  special  colour  should  be  resorted  to  because  a  flag  will  be 
of  no  use  by  night,  and  even  in  day-time  it  is  hardly  recognisable  at 
a  distance.      (The  Toyei  Maru.) 

4.  A  special  colour  is  recommendable,  and  by  way  of  suggestion, 
we  should  advise  a  white  horizontal  band  between  the  green  and  red. 
(The  Ko-un  Maru.) 

IV.  For  a  Hospital  Ship  or  Ship  not  Hospital,  is  it  Justi- 
fiable to  Rescue  the  Sick  and  Wounded  by  Venturing  into  the 
Place  of  Combat  During  the  Battle  f  or  is  Such  Conduct  to  be 
Allowed  Only  After  the  Battle? 

Even  though  we  are  aware  of  the  fitness  of  relieving  the 
discomfited  either  in  the  course  of  hostilities  or  after,  accord- 
ing to  the  express  provisions  contained  in  Art.  IV.  of  the  treaty, 
which  says  that  "the  said  ships  may  perform  their  rescue  service 
either  in  the  course  of  hostilities  or  after,  at  the  risk  of  their 
own  safety  being  endangered/'  still  uncertainty  exists  as  to  the 
sphere  in  which  they  may  lawfully  move  about,  or  in  other 
words,  whether  they  are  allowed  in  the  line  of  hostilities  to 
rescue  the  wounded  and  sick  or  those  who  are  drowning.  For 
instance,  suppose  an  admiral  of  the  enemy's  squadron  is 
drowning,  then  is  it  lawful  for  a  neutral  hospital  ship  or  a 
neutral  ship  not  hospital  to  try  to  rescue  him,  venturing  into 
the  line  of  hostilities,  say  within  the  range  of  fire,  or  should 
an  action  be  condemned  as  prejudicial  to  the  opposite  ship  for 
taking  away  an  important  prisoner  thereby? — a  practical  prob- 
lem met  with  even  in  the  course  of  the  late  war. 

Some  insist  on  limiting  such  a  rescue  to  the  post  helium, 
while  others  are  prone  to  sanction  it,  on  the  ground  that  the 
admiral  thus  rescued  should  naturally  be  placed  under  the 
power  of  the  belligerents  together  with  that  neutral  ship  in 
which  the  rescued  admiral  was,  as  the  victor's  warship  can  con- 
trol that  neutral  ship. 

1.  With  a  view  to  the  best  service,  a  hospital  ship  should  at- 
tempt the  rescue  of  the  sick   and   wounded  after   a  combat,  avoiding 


CHAP.  IV.,  SECT.  II.]      MARITIME   WARFARE.  383 

all  possible  risks,  unless  the  case  requires  otherwise,  as,  for  instance, 
when  a  warship  is  at  a  point  of  sinking  and  has  ceased  to  be  of  any 
moment  to  the  combat  going  on.      (The  Choysan.) 

2.  The  rescue  should  be  after  the  combat.      (The  Rosetta.) 

3.  Not  infrequently  it  is  done  during  a  combat.     (The  Doyo  Maru.) 

4.  As  far  as  it  affords  no  disturbance  to  the  combat  going  on 
and  circumstances  are  duly  taken  into  consideration,  rescue  during  a 
combat  should  be  justified.  In  such  cases,  however,  a  special  accom- 
modation will  be  required.      (The  Kohina  Maru.) 

5.  Owing  to  lack  of  any  personal  experience,  I  am  indisposed  to 
offer  any  opinion  on  the  point.     (The  Ugo  Maru.) 

6.  Though  not  yet  confirmed  with  any  personal  experience,  I 
should  say  it  may  be  possible  to  rescue  during  combat,  as  far  as  the 
circumstances  allow  any  access  of  a  hospital  ship  to  the  theatre  of 
combat,  and  provided  the  ship  for  the  purpose  is  of  a  small  size,  say, 
some  200  tons,  with  a  capacity  for  about  200  persons  to  be  rescued,, 
of  a  tolerable  speed,  and  with  convenient  accommodations  for  the 
purpose.      (The  Kabafuto  Maru.) 

7.  Rescue  during  combat  may  be  justified  as  far  as  it  does  not 
interfere  in  any  way  with  the  movements  of  the  combat  going  on. 
(The  Toyei  Maru.) 

8.  As  a  hospital  ship  would  be  exposed  to  every  injury  from  shots, 
and  might  be  taken  as  an  impediment  to  the  belligerents,  the  rescue 
service  should  be  put  off  till  the  combat  is  ended.     (The  Ko-un  Maru.) 

9.  The  rescue  should  be  done  after  the  combat,  because  if  not, 
the  belligerents  would  be  thereby  disturbed,  and  the  rescue  would  be 
ineffectual.      (The  Kitisho  Maru.) 

10.  Rescue  would  be  practically  impossible  during  a  combat, 
owing  to  all  sorts  of  danger  possible.     (The  Miyoshi  Maru.) 

V.  The  Disposal  of  the  Wounded  and  Sick  Received  in  a. 
Neutral  Ship. 

Begulations  must  be  said  to  be  really  incompetent  when 
matters  turn  on  the  disposal  of  the  wounded  and  sick  of  either 
of  the  belligerents  received  by  a  neutral  ship;  and  it  is  well 
known  that  Mr.  Mahan,  of  the  United  States  of  America,  and 
M.  Nornean,  of  France,  widely  differed  in  their  opinions  while 
The  Hague  Convention  was  being  established,  on  whether  the 
wounded  and  sick  should  be  restored  to  their  own  nationality, 
should  be  sent  to  a  neutral  port,  or  be  left  at  the  victors' 
mercy. 


384  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

At  any  rate,  the  belligerents  have  controlling  authority  over 
a  neutral  ship,  but  as  a  consequence  of  the  striking  out  of 
Art.  X.,  the  wounded  and  sick  are  to  be  either  detained  till 
circumstances  require  otherwise  or  unconditionally  restored  to 
their  respective  nationalities. 

This  point  deserves  deliberate  consideration  along  with 
Art.  X.  of  the  Convention. 

The  opinions  of  some  of  the  Japanese  floating  hospitals 
were  as  follows: 

1.  The  wounded  and  sick  of  either  of  the  belligerents  rescued  by 
a  neutral  ship  should  be  Under  a  certain  oath,  if  restored  to  their  own 
nationality.      (The  Choysan.) 

2.  The  wounded  and  sick,  whether  restored  to  their  normal  state 
or  not,  should  be  detained  by  a  neutral  power,  as  long  as  the  hos- 
tilities last.     (The  Toyei  Maru.) 

At  The  Second  Hague  Conference  these  questions  were  dis- 
cussed and  a  convention  was  passed. 

Dr.  J.  B.  Scott  remarks  as  follows : 1 

"  The  Tenth  Convention  adapted  to  maritime  warfare  the 
principles  of  the  Geneva  convention  of  1906.  It  is  not  neces- 
sary to  describe  this  admirable  document  in  detail.  We  are 
familiar  with  the  Eed  Cross  and  its  work,  and  there  exists 
absolute  unanimity  of  opinion  that  the  sick  and  wounded  upon 
the  battle-field  or  upon  the  high  seas  should  be  cared  for,  irre- 
spective of  nationality.  Humanity  demands  it,  and  this  de- 
mand has  been  carefully  complied  with.  A  word  of  history 
may,  however,  be  permitted.  The  first  Geneva  convention, 
dealing  with  land  warfare,  was  drawn  up  in  1864.  The  addi- 
tional articles  of  1868,  extending  the  principles  of  land  war- 
fare to  naval  warfare,  failed  of  adoption.  In  1899  the  addi- 
tional articles  were  made  the  basis  of  a  convention  dealing  with 
this  question  adopted  at  the  First  Hague  Convention.  War- 
fare, however,  had  changed  since  1864,  and  it  was  felt  that 
the  provisions  of  the  Geneva  Convention  of  1864  should  keep 
pace  with  the  changed  conditions,  so  in  1906  the  Geneva  Con- 

1  The  American  Journal  of  International  Law,  vol.  ii.,  No.  1,  January,  1908,  pp.  20-21. 


CHAP.  IV.,  SECT.  II.]      MARITIME   WARFARE.  385 

vention  of  1864  was  revised  and  the  present  conference 
adapted  the  provisions  of  this  revised  convention  of  1906  to 
naval  warfare.  It  is  not  necessary  to  enlarge  upon  the  impor- 
tance of  this  convention.  We  understand  it  and  are  proud  of 
the  progress  it  marks,  in  succouring  the  sick  and  the  wounded, 
and  mitigating  in  their  extreme  rigour  the  evils  necessarily  in- 
cident to  war." 

In  the  author's  opinion  there  remain  many  points  which 
ought  to  be  regulated;  still  it  is  true  that  there  is  good  reason 
to  be  proud  of  the  progress,  comparing  the  former  conventions.1 

1  See  also,  Westlake's  International  Law,  Part  II.,  pp.  275-279. 


CHAPTEK   V. 

WAE    COEEESPOKDENTS    OF    FOEEIGN    NEWS- 
PAPEES    AND    COEEESPONDENTS'    SHIPS. 

The  war  brought  to  Japan  many  correspondents  of  foreign 
newspapers,  and  made  it  necessary  that  steps  be  taken  for  their 
proper  superintendency.  Under  the  circumstances  many  of 
them  deemed  the  Japanese  superintendents  too  strict,  and  were 
offended  on  account  of  it;  but  it  was  a  military  necessity  on 
the  part  of  Japan.  Suppose  that  the  statements  as  to  the 
strong  power  of  Eussia  were  believed  by'  the  world.  Charles 
XII.  with  his  marvellous  energy  failed  to  win  her.  Even  Na- 
poleon the  first  did  not  succeed  in  conquering  her.  Japan,  for 
the  necessity  of  self-existence,  when  confronted  with  such  a 
formidable  enemy  was  justified  in  taking  extreme  care  in  keep- 
ing her  military  secrets.  Moreover,  it  must  be  noticed  that 
there  were  some  who  had  reason  to  be  suspected  of  acting  for 
Eussia,  and  this  not  without  good  evidence,  and  the  fact  that 
there  were  such  persons  had  a  natural  effect  to  give  inconven- 
ience to  the  other  correspondents.  It  was  a  fact  that  Japan 
paid  great  attention  to  treating  well  the  newspaper  correspon- 
dents. For  that  purpose,  the  graduates  of  the  Tokyo  Univer- 
sity as  well  as  the  Paris  University,  etc.,  were  attached  to  each 
army  for  entertaining  these  far-coming  guests.  Dr.  Y.  Tanaka, 
one  of  those  who  were  in  this  service,  told  the  author  his  expe- 
rience, that  at  first  there  were  some  misunderstandings  between 
the  correspondents  and  military  officers  who  were  not  well  ac- 
quainted with  foreign  languages.  But  when  they  understood 
each  other  they  had  no  more  ill  feeling  and  became  very  inti- 
mate. Only  those  who  left  Japan  or  Manchuria  before  they 
came  to  understand  each  other  returned  with  the  bitter  feeling 
still  with  them,  which  is  a  very  regrettable  fact. 

386 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  387 

And  so  far  as  the  author  of  this  work  knows,  there  was  no 
special  ill  treatment  of  the  correspondents.  Here  is  an  article 
of  a  foreign  paper  as  quoted: 

War  Correspondent's  Impressions.1 

Mr.  George  Lynch,  the  well-known  litterateur  and  war  correspon- 
dent, whose  experience  of  military  matters  in  the  two  hemispheres  par- 
ticularly fits  him  to  express  an  opinion  on  the  present  state  of  affairs 
in  the  Far  East,  arrived  at  Queenstown  yesterday  by  the  Baltic  on  his 
return  from  the  seat  of  war. 

As  regards  the  press  censorship  Mr.  Lynch  did  not  complain  of  it. 
"  It  was  of  enormous  importance  to  the  Japanese  that  information  as 
to  their  position  and  resources  should  not  be  given  to  the  enemy.  For 
instance,  at  Pitsewo  where  the  Japanese  landed,  the  water  was  so  shal- 
low that  a  boat  could  not  land,  and  the  troops  had  to  wade  4000 
metres.  If  that  spot  had  been  indicated,  Russian  troops  could  have 
been  sent  there,  and  500  of  them  could  have  kept  5000  men  at  bay. 
No  reasonable  correspondent  could  have  objected  to  the  Japanese  cen- 
sorship, and  it  was  much  fairer  than  the  Russian." 

The  problem  of  the  treatment  of  the  newspaper  corre- 
spondents is  well  discussed  in  International  Law  Situations, 
published  by  the  United  States  Naval  College.2  The  author 
takes  the  liberty  to  quote  the  large  part  of  the  solution  to 
prove  that  the  Japanese  treatment  of  the  correspondents  was 
very  reasonable,  judging  from  the  American  view. 

Notes  on  Situation  VII. 

(a)  What  treatment  should  the  correspondents  described  in  this 
situation  receive? 

Russian  Declaration,  1904. — During  the  Russo-Japanese  War  in 
1904,  in  April,  there  was  issued  by  Admiral  Alexieff  a  circular  in  re- 
gard to  the  use  of  new  means  of  communication  by  newspaper  cor- 
respondents. This  was  particularly  aimed  at  certain  neutral  press 
boats  which  were  using  wireless  telegraphy  in  transmitting  news  of 
the  war. 

The  circular  handed  by  the  Russian  diplomatic  agents  to  the  for- 
eign offices   of  various   states  was  reported  as   follows: 

"  I  am  instructed  by  my  Government,  in  order  that  there  may  be 

1  Cork  Examiner,  November  11,  1905. 

2  International  Law  Situations,  1904,  Situation  VII.,  pp.  106-116. 


388  LAWS   OF   NAVAL  WARFARE.  [PART   III. 

no  misunderstanding,  to  inform  your  excellency  that  the  Lieutenant 
of  His  Imperial  Majesty  in  the  Far  East  has  just  made  the  follow- 
ing declaration:  In  case  neutral  vessels,  having  on  board  correspon- 
dents who  may  communicate  news  to  the  enemy  by  means  of  improved 
apparatus  not  yet  provided  for  by  existing  conventions  should  be  ar- 
rested off  Kwangtung,  or  within  the  zone  of  operations  of  the  Russian 
fleet,  such  correspondents  shall  be  regarded  as  spies,  and  the  vessels 
provided  with  such  apparatus  shall  be  seized  as  lawful  prizes." 

It  should  be  observed  that  the  Russian  Government  merely  informs 
other  governments  that  Admiral  Alexieff  has  issued  this  Declaration. 
The  Russian  Government  does  not  assert  that  it  proposes  permanently 
to  support  the  position  taken  by  its  lieutenant. 

The  French  text  of  the  Declaration  was  as  follows: 

Dans  le  cas  ou  des  vapeurs  neutres,  ayant  a  bord  des  correspondants  qui  com- 
muniqueraient  a  l'ennemi  des  nouvelles  de  guerre  au  moyen  d'appareils  perfectionnes 
n'etant  pas  encore  preVus  par  les  conventions  existantes — seraient  arreted  aupres  de 
la  cote  du  Kwantoung  ou  dans  la  zone  des  operations  de  la  flotte  russe — les  corre- 
spondants seront  envisages  comme  espions  et  les  vapeurs,  munis  d'appareils  de  t616- 
graphie   sans   fil-saisis   en    qualite"    de   prise   de   guerre. 

Treatment  of  Vessels  Using  Wireless  Telegraph. — Considering  the 
provisions  of  this  circular  in  the  reverse  order  of  their  statement,  the 
first  matter  is  the  treatment  of  the  vessels.  The  implication  is  that 
the  equipment  with  wireless  telegraphic  outfit  by  a  neutral  vessel 
"  within  the  zone  of  operations,"  is  sufficient  ground  for  the  seizure 
of  the  vessel  as  lawful  prize.  If  this  means  that  the  ordinary  rules 
of  prize  courts  hold  for  such  a  vessel,  it  is  difficult  to  understand  how 
an  adjudication  can  be  made.  If  the  circular  means  that  such  ves- 
sels, when  actually  engaged  in  communicating  information  of  a  mili- 
tary character  to  the  enemy,  are  guilty  of  unneutral  service  and  are 
liable  to  the  penalties  consequent  upon  such  service,  the  provision  is 
clear,  for  such  would  be  the  offence,  and  the  regular  penalty  would  be 
confiscation  of  vessel  and  equipment. 

The  attempt  to  bring  under  the  rules  of  contraband  and  violation 
of  blockade  many  forms  of  action  in  time  of  war  which  have  only  a 
remote  relation  to  either  has  led  to  confusion,  which  shows  the  need 
of  further  elucidation  of  the  principles  of  unneutral  service  which  in- 
volves actual  participation  by  service  in  behalf  of  the  enemy. 

Spies. — The  treatment  of  the  correspondents  using  wireless  tel- 
egraphy as  spies  raises  further  questions. 

The  treatment  of  a  captured  spy  is  usually  summary  and  extreme, 
and  while  Art.  XXX.  of  The  Hague  Convention  respecting  the  Laws 
and  Customs  of  War  on  Land  prescribes  that  "  a  spy  taken  in  the 
act   cannot  be  punished  without   previous   trial,"   yet   the   penalty   ia 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  389 

usually  extreme.  If,  then,  the  proclamation  of  the  Russian  admiral 
is  admitted  as  in  accord  with  practice,  the  position  of  a  newspaper  cor- 
respondent would  be  exceedingly  dangerous  when  news  is  communicated 
to  the  enemy,  since  he  might  become  liable  to  treatment  as  a  spy. 

Both  Russia  and  Japan  are,  however,  parties  to  the  above-mentioned 
convention,  which  defines  the  term  "  Spy,"  in  Art.  2tXIX.,  as  follows : 

An  individual  can  only  be  considered  a  spy  if,  acting  clandestinely,  or  on  false 
pretences,  he  obtains,  or  seeks  to  obtain,  information  in  the  zone  of  operations  of  a 
belligerent,  with  the  intention  of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  in  disguise,  who  have  penetrated  into  the  zone  of  operations 
of  a  hostile  army  to  obtain  information,  are  not  considered  as  spies.  Similarly  the 
following  are  not  considered  as  spies :  Soldiers  or  civilians,  carrying  out  their  mission 
openly,  charged  with  the  delivery  of  despatches  destined  either  for  their  own  army,  or 
for  that  of  the  enemy.  To  this  class  belong  likewise  individuals  sent  in  balloons  to 
deliver  despatches  and  generally  to  maintain  communication  between  the  various  parts 
of  an  army  or  a  territory. 

This  rule  is  in  accord  with  general  practice,  both  for  land  and 
naval  warfare.  There  is  no  basis  upon  which  an  officer  in  the  mili- 
tary service  can  set  up  a  new  definition.  The  fact  that  a  news  cor- 
respondent uses  in  transmitting  communications  "  improved  apparatus 
not  yet  provided  for  by  existing  conventions  "  does  not  constitute  him 
a  spy.  It  is  not  the  means  of  communication  but  the  nature  of  the 
act  which  determines  the  status  of  a  spy.  The  nature  of  the  act  is 
clearly  set  forth  in  The  Hague  Convention  above  quoted,  and  any  per- 
son, whether  newspaper  correspondent  or  other,  guilty  of  such  an  act, 
whatever  the  means  used,  is  a  spy  without  further  proclamation  or 
discussion. 

Conclusion  as  to  Russian  Declaration. — The  conclusion  would  be, 
therefore,  that  a  vessel  is  not  liable  to  seizure  as  prize  merely  from 
the  fact  of  having  on  board  "  improved  apparatus "  for  communicat- 
ing news,  and  that  correspondents  using  such  "  improved  apparatus  " 
are  not  liable  from  the  simple  fact  of  its  use  to  treatment  as  spies. 

On  the  other  hand,  newspaper  correspondents  who  act  in  such  a 
manner  as  to  bring  themselves  under  the  definition  of  spies  are  liable 
to  treatment  as  such,  without  special  notification,  in  the  same  manner 
as  any  other  person.  The  vessel  concerned  in  transmitting  such  infor- 
mation, together  with  its  equipment  for  such  purpose,  is  undoubtedly 
liable  to  the  penalty  of  unneutral  service,  which  is  confiscation. 

It  is  not  possible  to  defend  the  position  assumed  in  the  Russian 
circular  in  its  present  extreme  form.     As  Kebedgy  says: 

L'emploi  de  la  t616graphie  sans  fil  par  les  correspondants  des  journaux  a  la  guerre 
a  pose"  une  question  qui  m6rite  d'etre  €tudi6e  de  pres.  Mais  nous  ne  pensons  pas  qu'on 
pourra  jamais  approuver  la  decision  de  traiter  ces  correspondants  comme  des  espions. 
(Revue  de  Droit  International,  VI.,  p.  451.) 


390  LAWS   OF   NAVAL  WARFARE.  [PART   III. 

The  manifest  intent  of  the  circular  to  control  the  action  of  press 
agents  and  press  boats  within  the  zone  of  hostile  operations  is,  how- 
ever, proper  in  view  of  the  danger  to  the  belligerent  which  may  follow 
unrestricted  communications. 

Control  of  Newspaper  Correspondents. — Various  regulations  have 
from  time  to  time  been  issued  which  affect  newspaper  correspondents. 

The  Hague  Convention  respecting  the  Laws  and  Customs  on  Land 
provides : 

Article  XIII.  Individuals  who  follow  an  army  without  directly  belonging  to  it, 
such  as  newspaper  correspondents  and  reporters,  sutlers,  contractors,  who  fall  into 
the  enemy's  hands,  and  whom  the  latter  think  fit  to  detain,  have  a  right  to  be  treated 
as  prisoners  of  war,  provided  they  can  produce  a  certificate  from  the  military  authorities 
of  the  army  they  were  accompanying. 

Instructions  for  the  Government  of  Armies  of  the  United  States  in 
the  Field  provide: 

Article  L.  Moreover,  citizens  who  accompany  an  army  for  whatever  purpose, 
such  as  sutlers,  editors,  or  reporters  of  journals,  or  contractors,  if  captured,  may  be 
made  prisoners  of  war  and  be  detained  as  such. 

Art.  XXXIV.  of  the  Brussels  Rules  of  Military  Warfare,  1874,  pro- 
vides that: 

Persons  in  the  vicinity  of  armies,  but  who  do  not  directly  form  part  of  them,  such 
as  correspondents,  newspaper  reporters,  vivandiers,  contractors,  etc.,  may  also  be 
made  prisoners  of  war. 

These  persons  should,  however,  be  furnished  with  a  permit,  issued  by  a  competent 
authority,  as  well  as  with  a  certificate  of  identity. 

And  Art.  XXIII.  defines  prisoners  of  war  as  "  lawful  and  disarmed 
enemies." 

The  Oxford  Manual  of  the  Laws  of  War  on  Land  of  1880  gave  to 
such  persons  a  more  lenient  treatment,  as  is  shown  in  Art.  XXII. : 

Persons  who  follow  an  army  without  forming  a  part  of  it,  such  as  correspondents 
of  newspapers,  sutlers,  contractors,  etc.,  on  falling  into  the  power  of  the  enemy,  can 
only  be  detained  for  so  long  a  time  as  may  be  required  by  military  necessity. 

The  rules  of  The  Hague  Convention  of  1899  do  not  define  prisoners 
of  war,  but  do  provide  for  their  treatment,  and  provide  that  news- 
paper correspondents  and  reporters  shall  have  like  treatment  when 
captured. 

Certification  of  Newspaper  Correspondents. — The  implication  of  the 
last  clause  of  Art.  XIIL,  viz.,  "  provided  they  ( newspaper  corre- 
spondents, etc.)  can  produce  a  certificate  from  the  military  authorities 
of  the  army  they  were  accompanying,"  is  that  in  the  future  such  cor- 
respondents are  to  be  regularly  certified  by  the  commander  of  the 
forces  with  which  they  are  for  the  time  being. 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  391 

According  to  The  Hague  Convention,  the  right  to  grant  certificates 
to  correspondents  is  in  the  hands  of  the  commander.  The  commander, 
in  the  absence  of  orders  to  the  contrary,  would  be  authorised  to  pre- 
scribe the  regulations  under  which  certificates  would  be  granted  and 
by  implication  would  be  able  to  exclude  from  the  field  of  his  authority 
those  not  properly  certified. 

Further,  there  is  implied  in  the  right  to  grant  the  certificate  the 
right  to  withhold,  which  would  be  a  means  by  which  the  character 
of  the  correspondents  could  be  in  a  measure  controlled. 

There  would  also  be  implied  the  right  to  make  such  rules  for  the 
government  of  correspondents  as  might  at  the  time  seem  good. 

The  rule  of  The  Hague  Convention  would  also  seem  to  indicate  that 
persons  not  having  a  proper  certificate  would  not  necessarily  be  en- 
titled to  the  treatment  of  prisoners  of  war.  If  this  be  the  case,  the 
military  commander  would  properly  insist  that  correspondents  should, 
if  with  the  forces,   be   provided  with  proper   certificates. 

A  plan  making  a  certificate  a  compulsory  prerequisite  for  accom- 
panying military  forces  would  accord  with  the  spirit  of  The  Hague 
Convention,  and  would  put  the  control  of  correspondents  in  the  hands 
of  the  commander  of  the  forces. 

The  rules  of  The  Hague  Convention  were  drawn  with  reference 
to  warfare  upon  land,  and  have  been  accepted  by  practically  all  the 
states  of  the  world.  The  United  States  authorities  would,  therefore, 
be  fully  justified  in  demanding  that  those  correspondents  only  should 
be  allowed  with  its  army  who  were  properly  certified. 

If  it  is  generally  accepted  that  the  military  authorities  of  forces 
on  land  should  control  correspondents,  it  is  even  more  important  that 
such  control  should  be  extended  to  correspondents  in  the  neighbour- 
hood of  naval  operations,  for  the  disclosure  of  movements  of  a  fleet 
or  of  a  war  vessel  may  be  even  more  serious  than  a  similar  disclosure 
in  regard  to  forces  upon  land. 

Right-minded  newspaper  men  ask  for  fair  treatment  only,  and  would 
regard  regulations  which  would  give  equality  of  opportunity  to  all 
correspondents  as  in  every  way  desirable;  otherwise  they  would  not 
be  fit  persons  to  accompany  a  military  force  on  sea  or  land. 

The  control  should  not,  of  course,  be  limited  to  "the  correspondents 
and  reporters  alone,  but  should  be  extended  to  the  whole  personnel  and 
all  agencies  concerned  in  gathering  and  forwarding  news  of  the  war. 

Such  control  of  the  personnel  and  agencies  for  gathering  and  for- 
warding news  could  be  justly  demanded;  even  the  Red  Cross  personnel 
and  agencies  must  submit  to  control  of  the  commanding  military 
authority. 

The  naval  commander  has  a  right  to  control  hospital  ships  accord- 


392  LAWS   OF  NAVAL  WARFARE.  [PART   III. 

ing  to  The  Hague  Convention,  1899,  for  the  Adaptation  to  Maritime 
Warfare  of  the  Principles  of  the  Geneva  Convention,  which  provide 
that  hospital  ships 

.  .  .  must  not  in  any  way  hamper  the  movements  of  the  combatants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril.  The 
belligerents  will  have  the  right  to  control  and  visit  them;  they  can  refuse  to  help  them, 
order  them  off,  make  them  take  a  certain  course,  and  put  a  commissioner  on  board;  they 
can  even  detain  them  if  important  circumstances  require  it. 

As  far  as  possible,  the  belligerents  shall  inscribe  in  the  sailing  papers  of  the  hospital 
ships  the  orders  they  give  them. 

The  naval  commander  has  full  right  to  demand  equal  control  of 
correspondents,  press  boats,  despatch  boats,  and  the  like,  whose  mis- 
sion may  be  from  its  nature  far  more  dangerous  than  the  mission  of 
hospital  ships  to  the  success  of  the  military  plans. 

Regulations  somewhat  similar  in  spirit  to  those  for  the  government 
of  hospital  ships  and  personnel  would  give  to  the  commander  suffi- 
cient control  without  unduly  limiting  the  freedom  of  action  of  press 
boats  and  press   correspondents. 

It  is  on  its  face  far  more  necessary  for  a  State  that  its  commanders 
should  be  unhampered  in  the  prosecution  of  their  military  operations 
in  order  that  they  may  bring  them  to  a  successful  issue  than  that  the 
people  of  a  State  should  know  from  hour  to  hour  exactly  what  the 
military  force  is  doing.  This  is  what  the  enemy  desires  particularly 
to  know. 

War  is  not  ordinarily  undertaken  to  give  an  opportunity  for  the 
display  of  journalistic  enterprise,  and  no  commander  would  be  justi- 
fied in  unnecessarily  sacrificing  resources  or  men  to  such  enterprise. 
This  being  axiomatic,  it  may  also  be  said  that  the  people  are  en- 
titled to  such  knowledge  of  the  course  of  the  war  as  may  not  inter- 
fere with  military  operations.  The  commanding  officer  in  a  given 
area  'is  the  best  judge  as  to  what  information  shall  be  published. 

This  natural  conclusion  leads  to  the  further  one  that  the  com- 
manding officer  must  control  the  news  sent  from  the  field  of  opera- 
tions. This  can  be  done  by  the  common  means  of  censorship  of 
despatches  and  news.  This  censorship  may  extend  to  the  entire  prohibi- 
tion of  the  sending  of  any  despatches  or  to  the  determination  of  what 
shall  be  sent  and  of  the  form  in  which  it  shall  be  sent. 

From  what  has  been  said,  it  is  evident  that  newspaper  corre- 
spondents, though  using  wireless  telegraphy,  are  not  ipso  facto  spies. 
If  guilty  of  acts  of  spying,  then  they  are,  of  course,  liable  to  the  con- 
sequences. The  simple  sending  of  messages  in  regard  to  the  war  does 
not  in  itself  constitute  spying.  It  is  an  act  commercial,  rather  than 
military  in  its  nature. 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  393 

After  newspaper  correspondents  have  been  forbidden  within  a  given 
area  or  after  they  have  been  notified  not  to  communicate  any  news  in 
regard  to  military  affairs,  the  sending  of  despatches  would  constitute 
an  offence  with  which  the  commanding  officer  would  have  full  power 
to  deal. 

Conclusion. — Without  previous  notice  in  regard  to  or  regulation  of 
the  agencies  by  which  newspaper  correspondents  may  send  news,  it 
is  presumed  that  all  agencies  which  may  not  involve  perfidy  are 
legitimate.  As  the  correspondents  in  this  instance  had  not  disobeyed 
any  regulation,  but  had  merely,  as  would  be  expected,  used  the  most 
modern  means  of  communication,  they  are  not  therefore  liable  to  any 
penalty.  It  would  be  presumed  that  the  agency  of  the  wireless  tele- 
graph would  be  open  to  them  in  absence  of  prohibition  and  unless  for- 
bidden no  authorisation  would  be  necessary. 

The  correspondents  would  therefore  be  acting  in  a  proper  manner 
and  would  not  be  liable  to  any  penalty  for  the  use  of  the  agency  of 
the  wireless  telegraph  when  such  use  is  not  prohibited. 

This  conclusion  shows  the  emphatic  necessity  of  the  regulation  of 
news-gathering  and  transmission  on  and  from  the  field  of  military 
operations. 

(6)  Granting  that  newspaper  correspondents  will  be  allowed  in 
the  field  of  operations,  what  regulations  should  govern  them  ? 

Japanese  Regulations',  1904. — The  Regulations  for  War  Correspon- 
dents issued  by  the  Japanese  Government  to  hold  during  the  Russo- 
Japanese  War  accord  with  the  principles  set  forth  above.  These 
regulations  are  as  follows: 

Regulations  for  War  Correspondents. 

Art.  I.  Newspaper  correspondents  who  wish  to  follow  the  army 
are  required  to  make  application  to  the  department  of  war,  together 
with  a  sketch  of  their  antecedents  and  a  document  of  personal  guar- 
anty signed  by  the  proprietor  of  the  newspaper  to  which  they  belong. 

In  case  of  foreign  correspondents,  their  application  shall  be  sent 
through  their  respective  ministers  or  consuls  and  the  department  of 
foreign  affairs.  Foreign  correspondents  need  only  mention  in  their 
application  the  name  of  the  newspaper  to  which  they  belong  and  dis- 
pense altogether  with  the  presentation  of  sketches  of  antecedents  and 
papers  of  personal  guaranty. 

Art.  II.  The  applicant  must  have  been  engaged  in  journalistic 
work  for  not  less  than  a  year  as  a  member  of  a  newspaper  staff. 

Art.  III.  Foreign  correspondents  who  cannot  understand  the  Japa- 
nese language  may  take  with  them  one  interpreter  each  into  the 
field.     Any  correspondent  requiring  an  interpreter  may  engage  one  him- 


394  LAWS   OF  NAVAL   WARFARE.  [PART   III. 


self  and  present  an  application  on  the  interpreter's  behalf  accompanied 
by  a  paper  of  personal  guaranty  for  the  same. 

Abt.  IV.  A  foreign  correspondent,  in  addition  to  his  interpreter, 
may  engage  one  or  more  servants  when  circumstances  demand  it,  the 
procedure  of  engagement  to  be  in  accordance  with  the  foregoing 
article. 

Art.  V.  The  authorities,  when  they  consider  it  necessary,  may 
cause  the  selection  of  one  person  to  act  as  joint  correspondent  for  sev- 
eral  newspapers. 

Art.  VI.  In  case  any  person  is  allowed  to  accompany  the  Japa- 
nese forces  an  official  permit  shall  be  given  him. 

Art.  VII.  The  applicants  allowed  as  stated  shall  be  attached  to 
a  "Koto  shireibu  "    (higher  commanding  officer). 

Art.  VIII.  Correspondents  shall  always  wear  foreign  clothes,  and 
to  their  left  arms  shall  be  attached  a  white  band,  measuring  about 
2  inches  in  width,  on  which  the  name  of  the  newspaper  offices  which 
they  represent  shall  be  written  in  Japanese  with  red  ink. 

Art.  IX.  Correspondents  shall  always  carry  with  them  the  official 
permit,  and  shall,  when  asked,  show  it  to  officers  and  officials  belonging 
to  the  Japanese  forces. 

Art.  X.  Correspondents  shall  always  observe  the  rules  and  orders 
to  be  issued  by  the  Koto  shireibu  so  long  as  they  remain  with  the 
Japanese  forces. 

In  case  they  disregard  the  above  rules  and  orders,  the  authorities 
of  the  Koto  shireibu  may  refuse  to  allow  them  to  accompany  the  Japa- 
nese  forces. 

Art.  XI.  The  war  correspondent  will  not  be  allowed  to  despatch 
his  communications  (whether  they  be  correspondence  for  publication 
or  private  letters  or  telegrams,  etc.)  until  after  their  examination  by 
the  officer  appointed  for  the  purpose  by  the  higher  commanding  officer. 
No  communication  containing  cipher  or  symbols  will  be  permitted  to 
be  despatched. 

Art.  XII.  The  army  and  its  officers  will  accord,  as  far  as  cir- 
cumstances permit,  to  the  war  correspondents  suitable  treatment  and 
facilities,  and,  when  in  the  field  and  in  case  of  necessity,  give  him 
food,  etc.,  or,  at  his  request,  give  him  transportation  in  vessels  or 
vehicles. 

Art.  XIII.  In  case  the  war  correspondent  is  guilty  of  violation 
of  the  criminal  law,  military  criminal  law,  law  for  the  preservation 
of  military  secrets,  etc.,  he  may  be  adjudged  and  punished  by  the 
court-martial  according  to  the  military  penal  code. 

Art.  XIV.  Art.  VI.  to  XIII.  are  applicable  to  interpreters  and 
servants.      (Daily  Consular  Reports,  1904,  No.  1912,  p.  2.) 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  395 

Naval  Regulations. — The  regulations  particularly  applying  to  naval 
war  correspondents  are: 


Regulations  Governing  Naval  War  Correspondents. 

Art.  I.  A  newspaper  war  correspondent  desirous  to  accompany  the 
navy  shall  make  application  to  the  naval  staff,  imperial  headquarters, 
for  permission. 

Art.  II.  A  newspaper  war  correspondent  shall  obey  all  orders  of 
the  commanding  officer  of  the  fleet  which  he  accompanies. 

Art.  III.  No  communications  concerning  war  shall  be  sent  until 
after  they  have  been  examined  by  officers  nominated  for  the  purpose 
by  the  commanding  officer  of  the  fleet  which  he  accompanies. 

Art.  IV.  The  commanding  officer  of  the  fleet  may  cancel  the  per- 
mission granted  to  a  newspaper  war  correspondent. 

Art.  V.  Necessary  regulations  concerning  the  treatment  of  a  news- 
paper war  correspondent  shall  be  fixed  by  the  commanding  officer  of 
the  fleet. 

Art.  VI.  A  newspaper  war  correspondent  shall  wear  European 
dress  and  put  on  a  low  round-shaped  cap,  with  a  visor,  and  attach  on 
his  left  arm  a  strip  of  white  woollen  cloth  1  sun  (1.193  inches)  wide, 
with  the  characters  .  .  .    (paper  correspondent)    on  it. 

Art.  VII.  A  newspaper  correspondent  shall  always  carry  his  per- 
mit, mentioned  in  Art.  I.,  with  him,  and  shall  show  it  when  asked  by 
army  or  navy  authorities.  (Daily  Consular  Reports,  1904,  No.  1912, 
p.  4.) 

Effect  of  Japanese  Rules. — The  effective  control  of  the  news  relat- 
ing to  military  movements  during  the  Russo-Japanese  war  by  the 
Japanese  authorities  fully  justifies  the  rules  enunciated  by  Japan. 
It  is  doubtless  true  that  some  of  the  correspondents  have  found  it 
hard  not  to  be  upon  the  field  of  operations,  but  war  is  not  under- 
taken for  the  sake  of  gratifying  the  curiosity  of  the  public  which 
reads  the  accounts  of  battles  and  military  movements.  Provided  the 
correspondents  have  had  fair  treatment,  there  is  no  reason  for  com- 
plaint. 

The  State  must  determine  the  general  policy  in  regard  to  war  cor- 
respondents, and  the  commanding  officer  in  a  given  region  must  de- 
termine the  particular  application  of  this  policy. 

Russian  Regulations. — The  following,  according  to  the  Agence  tel6- 
graphique  russe,  are  the  regulations  for  the  conduct  of  foreign  cor- 
respondents  allowed   within   the   field  of   operations: 

Les  etrangers  doivent  produire  une  recommandation  de  leur  gouverne- 
ment  aupres  du  Ministere  Russe  des  Affaires  Etrangeres.     Chaque  cor- 


396  LAWS   OF  NAVAL  WARFARE.  [PART   III. 

respondant  doit  s'engager,  par  ecrit,  a  ne  propager  aucune  nouvelle 
contenant  des  critiques,  des  dispositions  ou  des  personnes,  a  reprg- 
senter  les  faits  conformement  a  la  verite*  et  a  supprimer  les  nouvelles 
qui  ne  peuvent  se  controler.  La  violation  de  ces  dispositions,  les  in- 
discretions, le  manque  de  tact  entrainent  des  observations,  et,  suivant 
les  cas,  l'eloignement  du  theatre  de  la  guerre.  Pour  tous  les  corre- 
spondants  sans  exception,  l'entree  de  l'amirantg,  les  docks  et  autres  in- 
stallations de  la  marine,  ainsi  que  l'emploi  de  vapeurs  sur  les  rades 
de  Port  Arthur  et  de  Vladivostock,  sont  interdits.  Les  correspondants 
doivent  s'engager  a  ne  pas  demander  d'exceptions  a  ces  dispositions.  A 
leur  arrivee  sur  le  theatre  des  operations,  ils  doivent  se  rendre  au 
quartier  general  et  prouver  leur  identite  par  une  photographie ;  l'etat- 
major  general  les  dirige  alors  sur  Petat-major  dont  ils  dependent.  Ils 
sont  responsables  de  leurs  domestiques.  Comme  insigne,  ils  doivent 
porter  un  brassard  au  bras  gauche.  Les  d6p§ches  chiffrees  sont  inter- 
dites.  La  censure  des  informations  a  lieu  au  quartier  general,  aupr£s 
de  l'etat-major  de  l'armee  de  Mandchourie,  et  a  l'administration  mili- 
taire  de  Khorbin,  Nion-Chouang,  Port  Arthur  et  Vladivostock.  (Quoted 
in  Revue  de  Droit  International,  VI.,  p.  448.) 

General  Scope  of  Necessary  Regulations. — These  rules  should  be 
such  as: 

1.  To  place  the  correspondents  under  the  control  of  the  naval 
commander. 

2.  To  place  the  control  of  the  news  sent  in  the  hands  of  the  com- 
mander. 

3.  To  enable  the  commander  to  prohibit  absolutely  the  sending  of 
any  information  from  the  field  of  operations. 

4.  To  place  the  agencies  by  which  news  is  sent  under  control  of 
the  commander. 

5.  To  enable  the  commander  to  inflict  penalties  for  violations  of 
any  regulations  he  may  make. 

The  commander  should  therefore  control  the  correspondents  them- 
selves, determine  the  news  to  be  sent,  or  prohibit  communications  en- 
tirely, control  the  means  of  sending  by  the  establishment  of  proper 
regulations  and  penalties. 

Conclusion. — From  these  conclusions  it  is  manifest  that  corre- 
spondents must  obtain  a  quasi-official  standing,  and  in  order  that  con- 
trol may  be  effective,  that  the  agencies  by  which  communication  is 
had  shall  also  be  official  to  the  extent  of  being  under  absolute  military 
control. 

Private,  irresponsible  persons  or  agencies  would  therefore  be  for- 
bidden within  the  field  of  operations  or  the  strategic  area. 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  397 

To  show  why  the  Japanese  authorities  were  obliged  to  pay 
such  great  attention  to  the  keeping  of  military  secrets,  the  fol- 
lowing cases  are  here  cited : 

Case  I.     The  Industrie. 
Published  on  Dec.  18th,  1905,  in  the  Official  Gazette,  Tokyo. 

Decision  of  the  Higher  Prize  Court  was  given  on  the  30th  of  the 
11th  month  of  the  38th  year  of  Meiji,  in  the  case  of  the  German  steam- 
ship  Industrie. 

Case  No.  LXXXII. 

Decision. 
Petitioner — Jurgen    Block,    German    merchant;     Tsingtao, 

China. 
Advocate — T.   Ishibashi;  Counsellor  at  Law.     41.     Togiya 
Machi,  Nagasaki. 

A  protest  has  been  filed  by  T.  Ishibashi,  advocate  of  the  petitioner, 
Jurgen  Block,  against  the  decision  of  the  Sasebo  Prize  Court  given 
on  the  13th  of  the  7th  month  of  the  38th  year  of  Meiji,  in  the  case 
of  the  German  steamship  Industrie,  which  was  captured  by  the  Japa- 
nese man-of-war  Kasuga  on  the  28th  of  the  3rd  month  of  the  38th  year 
of  Meiji,  in  the  vicinity  of  Kadoek  Island,  Korea.  The  original  de- 
cision condemned  the  ship.  The  protest  has  been  tried  before  this 
Court,  Public  Procurators  K.  Tswziki  and  B.  Ishiwatari  taking  part. 

The  purport  of  the  protest  filed  by  the  petitioner's  advocate,  T. 
Ishibashi,    is    as    follows: 

The  advocate  requests  that  the  original  decision  be  overruled  and 
the  ship  released.     As  the  grounds  for  the  protest  he  states, 

(1)  The  original  Court  assumed  this  vessel  to  have  been  hired  by 
Macdelmidt,  the  proprietor  of  the  Chefoo  Daily  News,  a  newspaper 
published  under  the  protection  of  t*he  Russian  Government,  and  sent 
under  the  direction  of  the  reporter  Bannier  to  the  base  of  the  Japa- 
nese Fleet,  with  the  object  of  collecting  information  and  reporting  it 
for  the  benefit  of  Russia,  basing  the  assumption  upon  the  following 
grounds:  that  the  Chefoo  Daily  News  was  a  small  newspaper  estab- 
lished recently,  that  it  had  no  means  to  send  out  a  reporting  vessel 
independently,  and  that  it  always  published  articles  partial  to  Russia. 
These  grounds  are,  however,  mere  suppositions  of  the  original  Court, 
not  found  anywhere  in  the  documents  concerning  this  case.  In  order 
to  evade  the  responsibility  of  producing  proof,  the  Court  called  them 
conspicuous  facts.  The  original  Court  must,  therefore,  be  said  to 
have  made  unjustifiable  assumption  of  facts. 


398  LAWS   OF  NAVAL  WARFARE.  [PART  III. 

(2)  The  original  Court,  in  assuming  the  above  facts,  cited  state- 
ments of  Bannier  and  of  the  master  Uddine.  But  these  statements 
have  no  value  as  grounds  for  assuming  facts.  To  a  question  of  the 
Councillor  in  charge,  Bannier  answered:  "I  did  not  know  that  be- 
fore. But  your  questions  make  me  think  it  is  possible.  .  .  ."  The 
answer  of  Uddine  was,  "  There  was  nothing  I  took  hint  of  from 
the  behaviour  of  Block.  But  from  the  questions  I  have  heard  at 
this  Court,  it  is  probable.  .  .  ."  Thus,  these  two  admitted  merely 
the  possibility  of  facts  of  which  they  had  no  knowledge,  being 
led  on  by  the  explanatory  and  inductive  questions  of  the  Councillor. 
Thus  the  two  stated  that  they  had  no  knowledge  or  idea  of  such 
facts,  and  it  is  absurd  to  infer  the  existence  of  the  facts  from  such 
statements. 

(3)  The  petitioner  had  this  vessel  insured  for  two  months  and  a 
half  from  the  17th  of  the  2nd  month  of  this  year,  and  in  the  insurance 
policy  it  was  stipulated  that  the  vessel  would  not  be  guaranteed  north 
of  Otaru,  south  of  the  Philippines,  or  east  of  Yezo,  that  the  vessel 
would  not  proceed  above  (?)  Moji,  and  that  in  case  the  vessel  should 
be  sold  within  one  month  from  the  date,  one-half  of  the  premium  would 
be  returned.  In  the  charter-party  concluded  between  the  petitioner 
and  Macdelmidt  special  stipulations  were  made  in  expectation  of  cases 
of  saving  vessels  in  distress.  In  a  letter  of  Macdelmidt  to  Bannier  it 
was  stated  that  the  vessel  might  be  inspected  by  a  buyer  at  Moji  or 
other  Japanese  port.  Seven  thousand  taels  were  demanded  for  the  hire 
of  the  vessel  for  three  months,  but  this  was  reduced  to  1500  taels  a 
month.  Negotiations  were  going  on  with  the  Kawasaki  Dockyard  for 
the  sale  of  the  vessel,  and  there  was  hope  of  favourable  conclusion;  the 
petitioner  in  negotiating  with  Macdelmidt  had  this  expectation  in  mind. 
The  petitioner  believed  that  on  the  24th  of  the  2nd  month  of  this  year 
the  vessel  was  at  Moji.  When  the  petitioner  heard  that  a  vessel  had 
run  ashore  in  the  Pescadores  and  that  French  cruisers  were  in  the  Gulf 
of  Siam,  he  regretted  the  vessel's  being  in  Japan,  saying  she  would 
have  made  a  profit  in  the  south.  The  vessel  intended  to  sail  towards 
the  Philippines.  The  facts  recounted  above  are  clear  from  the  docu- 
ments produced  by  the  petitioner  as  evidence,  and  are  sufficient  to 
prove  that  the  Industrie  was  not  a  scouting  vessel  for  the  benefit  of 
Russia,  but  was  employed  really  for  reporting  war  news.  According  to 
an  affidavit  produced  by  Macdelmidt,  he  was  acting  as  a  news  agent  for 
several  American  papers,  and  from  this  it  will  be  seen  that  he  had 
sufficient  income  and  means,  and  that  he  had  no  evil  intention  to  injure 
Japan.  Consequently,  he  had  no  need  to  receive  indemnity  from  the 
Russian  Government.  The  advocate,  therefore,  believes  that  there  were 
errors  in  the  assumption  of  facts  by  the  original  Court. 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  399 

The  gist  of  the  answer  of  C.  Minakami  and  S.  Yamamoto,  Public 
Procurators  of  the  Sasebo  Prize  Court,  to  the  above  protest  is  as  fol- 
lows : 

( 1 )  It  is  clear  from  the  statement  of  the  master  that  the  steam- 
ship Industrie  came,  on  the  3rd  of  the  3rd  month  of  this  year,  40 
miles  S.  W.  of  Tsushima,  that  she  returned  to  Shanghai  on  the  13th, 
but  left  again  on  the  15th,  arriving  at  North  Scene  (  ?)  Island,  Korea, 
on  the  23rd,  and  that  from  that  day  to  the  morning  of  the  27th,  she 
was  reconnoitring  Andersen  Island  and  Quelpart  and  their  vicinity. 
Moreover,  Adolph  Bannier,  who  was  on  board  the  Industrie  as  reporter 
and  had  the  direction  of  the  vessel,  stated  in  the  third  examination,  that 
the  Chef oo  Daily  News,  being  a  small  newspaper,  it  might  be  that  it 
was  receiving  the  protection  of  the  Russian  Government  .  .  .;  that  his 
reports,  he  thought,  would  be  transmitted  to  the  Russian  Government- 
through  the  Russian  Consul  at  Chefoo  or  Shanghai  .  .  .;  and  that  his 
reports,  he  thought,  gave  benefit  to  the  Russian  Government.  .  .  .  In- 
ferring from  these  statements,  it  becomes  very  clear  that  the  Industrie 
was  not  an  ordinary  reporting  vessel,  but  that  its  object  was  to  watch 
the  movements  of  the  Japanese  Fleet  and  to  make  reports  to  the  Rus- 
sian Government.  Again,  wrhat  the  original  Court  stated  as  a  con- 
spicuous fact,  was  that  the  Chefoo  Daily  News  has  always  been  partial 
to  Russia  and  has  repeatedly  published  things  injurious  to  Japan, 
which  is,  of  course,  very  clear  from  the  articles  of  that  paper;  but  it 
did  not  say  so  on  the  other  two  grounds.  This  will  be  clearly  seen,  if 
the  decision  be  read  intelligently. 

(2)  In  time  of  war  the  base  of  the  main  forces  of  a  belligerent's 
fleet  and  its  movements  are  his  secrets,  as  every  person  of  fair  intelli- 
gence knows.  A  neutral,  as  a  matter  of  honour,  should  not  divulge  any 
such  news,  even  if  he  learns  it  accidentally,  and  much  less  should  he 
attempt  to  find  it  out.  Now,  the  vessel  under  consideration  is  a  small 
craft  of  about  100  tons,  but  she  braved  rough  weather  and  stormy 
seas,  and  cruised  about  the  coast  of  Korea  for  several  days.  Her  in- 
tention could  not  be  other  than  to  discover  the  whereabouts  of  the 
Japanese  Fleet.  Moreover,  it  was  a  conspicuous  fact,  that  at  that  time 
there  was  not  a  single  Russian  man-of-war  to  be  seen  in  the  Eastern 
seas.  Thus  Bannier's  pretext  that  he  intended  to  watch  both  fleets 
impartially  was  untenable,  and  answering  the  questions  of  the  Coun- 
cillor, he  said  that  it  might  be  so,  or  that  he  thought  it  was  a  fact. 
These  statements  correspond  to  the  facts,  and  it  was  not  unreasonable 
for  the  original  Court  to  take  them  as  evidence. 

(3)  The  facts  that  the  vessel  was  insured,  that  there  was  an  agree- 
ment to  sell  the  vessel,  etc.,  are  not  sufficient  to  prove  that  she  was 
an  ordinary  reporting  vessel,  without  any  evil  intention.     On  the  other 


400  LAWS   OF   NAVAL  WARFARE.  [PART   III. 

hand,  in  his  fourth  examination,  the  master  stated  as  follows :  "  I  took 
no  hint  from  the  behaviour  of  Block,  but  from  the  question  I  hear  in 
this  Court  I  believe  it  true,  that  the  Daily  News  is  the  organ  of  the 
Russian  Government,  that  the  Industrie  has  been  sold  to  the  Russian 
Government,  and  is  to  be  delivered  at  Vladivostock,  that  in  case  the 
vessel  should  be  captured  on  the  way  the  Russian  Government  were  to 
pay  85,000  taels,  etc."  "  At  first  Block  ordered  me  to  proceed  to  Japan 
as  a  reporting  ship,  but  his  intention  might  be  to  send  the  vessel  to 
Vladivostock  with  false  papers  in  order  to  evade  capture.  .  .  ."  Again, 
in  the  fourth  examination  of  Bannier,  to  the  question  of  the  Councillor : 
"  According  to  the  investigation  made  by  this  Court,  a  contract  for 
the  sale  of  the  Industrie  for  135,000  taels  was  concluded  between  Block 
and  Major-General  Dessing,  of  Shanghai,  and  the  price  to  be  paid  on 
delivery  of  the  vessel  at  Vladivostock,  but  for  fear  of  capture  by  Japa- 
nese men-of-war,  it  was  stipulated  that  in  such  event  the  Russian 
Government  would  pay  to  Block  85,000  taels.  Do  you  think  this  true  ?  " 
Bannier  answered :  "  I  did  not  take  part  directly  in  that  business. 
Therefore,  I  cannot  positively  assert  it  to  be  true,  but  I  think  it  is.'* 
Bannier  also  stated  as  follows :  "  Before  leaving  Shanghai,  Block  once 
told  me  that  in  case  orders  were  sent  to  any  port  where  the  Industrie 
was  lying  to  go  to  Vladivostock,  I  must  go  to  that  port."  "  I  never 
told  the  master  that  the  vessel  was  going  to  Vladivostock,  but  at  the 
time  of  leaving  Shanghai  the  vessel  was  furnished  with  charts  of  the 
vicinity  of  Vladivostock.  So  the  master  and  I  thought  we  were  going 
to  Vladivostock.  And  these  charts  were  furnished,  I  think,  by  the 
order  of  Block."  From  these  statements,  it  must  be  concluded  that 
the  vessel  was  purchased  by  the  Russian  Government,  and  that  she, 
under  a  secret  agreement  between  the  owner  Block  and  the  newspaper 
proprietor  Macdelmidt,  undertook  to  collect  military  secrets  of  the 
Japanese  Fleet  under  the  guise  of  a  reporting  vessel,  and  to  cable  what 
information  she  obtained. 

For  the  above  reasons,  the  confiscation  of  the  vessel  by  the  original 
Court  was  just,  and  the  Public  Procurators  think  that  this  protest 
should  be  rejected. 

The  reasons  of  the  decision  of  this  Court  are  explained  as  fol- 
lows: 

The  advocate  pleads  that  the  vessel  under  consideration  was  char- 
tered by  Macdelmidt,  the  proprietor  of  the  Chefoo  Daily  News,  to  be 
employed  as  a  reporting  vessel.  But  the  vessel  cruised  about  the  Strait 
of  Korea,  and  at  last  found  the  Japanese  Fleet  in  the  neighbourhood 
of  Chinkai  Wan.  And  while  her  destination  was  given  ostensibly  as 
Moji,  the  owner,  before  her  departure  from  Shanghai,  gave  notice  of 
her  going  to  Vladivostock,  and  furnished  her  with  charts  of  the  vicin- 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.        .  401 

ity.  The  Chefoo  Daily  News  has  always  been  partial  to  Russia,  and 
publishes  articles  injurious  to  Japan.  Moreover,  in  the  examination 
before  the  original  Court,  in  answer  to  the  question  of  the  Council- 
lor: "According  to  the  investigation  made  by  this  Court,  a  contract 
of  sale  of  the  Industrie  for  135,000  taels  was  concluded  between  Block 
and  Major-General  Dessino,  of  Shanghai,  that  the  price  was  to  be  paid 
on  delivery  of  the  vessel  at  Vladivostock,  and  that  for  fear  of  capture 
by  Japanese  men-of-war,  it  was  stipulated  that  in  such  event  the  Rus- 
sian Government  would  pay  to  Block  85,000  taels.  Do  you  think  this 
true  ?  Bannier  answered,  "  I  did  not  take  part  directly  in  that  business. 
Therefore  I  cannot  positively  assert  it  to  be  true,  but  I  think  it  is." 
To  another  question,  "  Do  you  really  think  that  the  Russian  Govern- 
ment will  pay  85,000  taels,  and  that  the  Chefoo  Daily  News  was  the 
organ  of  the  same  Government?"  he  answered,  "I  think  that  is  true." 
He  also  stated  as  follows :  "  On  hearing  that  the  Russian  Government 
agreed  to  pay  Block  85,000  taels,  and  that  the  Chefoo  Daily  News  had 
been  receiving  subsidy  from  the  Russian  Government,  I  now  think  that 
my  .reports  would  be  transmitted  to  the  same  Government  through  the 
Russian  Consul  at  Chefoo  or  Shanghai,  .  .  .  and,  therefore,  all  my 
reports  would  benefit  the  Russian  Government."  The  master  also  made 
similar  statements.  Summing  up  the  above  facts  and  the  statements 
of  Bannier  and  of  the  ship's  master,  it  might  be  assumed  that  the  ves- 
sel had  been  sold  to  the  Russian  Government,  and  that  while  on  her 
way  to  Vladivostock  to  be  delivered,  she  attempted,  in  the  interest  of 
the  Russian  Government,  to  spy  out  military  secrets  of  the  Japanese 
Fleet,  under  the  pretext  of  collecting  news  for  the  press.  The  advocate 
protests  that  the  original  Court  erred  in  taking  the  statements  of  Ban- 
nier and  the  master  as  facts,  saying  that  those  statements  were  led  on 
by  the  explanatory  and  inductive  questions  of  the  Councillor  in  charge 
of  the  case.  But  those  statements  were  true,  as  disclosed  by  Bannier 
and  the  master  in  the  examination  by  the  Councillor,  and  it  is  quite 
proper  to  assume  them  to  be  facts.  As  to  the  policy  of  insurance,  the 
charter  party,  the  letters  of  Macdelmidt  and  petitioner,  etc.,  to  which 
the  advocate  refers,  to  prove  that  this  vessel  was  merely  reporting  for 
a  newspaper,  they  are  not  sufficient  to  overturn  the  presumption  of  the 
facts  in  the  case. 

For  the  above  reasons  it  is  very  clear  that  this  vessel  attempted  to 
search  out  military  secrets,  of  the  Japanese  Empire,  and  was  employed 
by  the  enemy;  and  that,  therefore,  the  original  Court  was  right  in  con- 
fiscating the  vessel.  For  the  other  points  of  the  protest  there  is  no 
need  of  giving  explanation. 

The  decision  of  this  Court  is  therefore  as  follows:  This  protest  is 
hereby  rejected. 


402  LAWS   OF  NAVAL   WARFARE.  [PART  III. 

Given  this  30th  day  of  the  11th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

Viscount  F.  Tanaka,  President  of  the  Higher  Prize  Court. 

Baron  T.  Nishi,  Councillor  of  the  Higher  Prize  Court. 

N.  Terashima,  Councillor  of  the  Higher  Prize  Court. 

K.  Ichiki,  Councillor  of  the  Higher  Prize  Court. 

S.  Inoue,  Councillor  of  the  Higher  Prize  Court. 

M.  Hashimoto,  Councillor  of  the  Higher  Prize  Court. 

H.  Doke,  Councillor  of  the  Higher  Prize  Court. 

S.  Tomitani,  Councillor  of  the  Higher  Prize  Court. 

K.  Matsui,  Councillor  of  the  Higher  Prize  Court. 

W.  Matsumoto,  Councillor  of  the  Higher  Prize  Court. 

Case  II.     The  Samson. 

An  extract  from  the  text  of  the  decision,  published  in  the  N.  C. 
Herald  and  S.  C.  and  C.  Gazette,  Shanghai,  on  June  23rd  and  30th,  1905. 

In  this  case,  Mr.  Phillips,  the  counsel  for  the  defendant,  who  was 
the  friend  of  Mr.  Bennett  Burleigh,  addressed  as  follows: 

Counsel,  continuing  his  address,  said  that  the  Samson  was  originally 
bought  for  a  press  boat.  Mr.  Bennett  Burleigh  came  to  Shanghai  and 
suggested  to  Mr.  Pavlow  that  a  ship  should  be  bought  by  him,  and  he 
(Mr.  Bennett  Burleigh)  would  go  to  Port  Arthur  and  obtain  informa- 
tion. The  details  as  to  why  this  was  done  would  be  seen  later.  Tls. 
15,000  was  paid  to  Mr.  Bennett  Burleigh,  part  of  "which  was  commission 
and  part  for  the  expenses  of  the  steamer.  The  arrangement  wras  that 
Mr.  Bennett  Burleigh  should  obtain  the  transfer  of  this  steamer,  that 
he  should  register  at  the  British  Consulate  as  owner,  and  that  he 
should  give  a  letter  of  trust.  The  letter  of  trust  was  given,  but  it 
was  in  the  form  of  a  transfer  to  Ward.  Mr.  Bennett  Burleigh  insisted 
that  he  should  not  give  anything  in  writing  to  Mr.  Pavlow  or  to  any- 
one who  held  an  official  position  in  the  Russian  Consulate  or  under  the 
Russian  Government.  His  reasons  for  that  were  that  he  did  not  wish  it 
known  that  his  newspapers  were  in  any  way  connected  with  the  Rus- 
sian Government. 

The  cross-examination  of  Mr.  Ward  is  worth  mentioning  here  to 
know  the  real  phenomenon  of  the  case: 

To  send  supplies  into  Port  Arthur,  medical  supplies,  as  many  as 
possible,  and  if  possible  to  get  the  sick  and  wounded  out,  or  at  any 
rate  the  crippled,  and  put  them  in  a  hospital,  either  at  Shanghai  or 
wherever  else  it  might  be  convenient. 

"  You  say  you  arrived  with  the  general  idea  of  chartering  a  vessel 
for  the   purpose   of  taking   medical  supplies   into   Port  Arthur  ?  " — "  I 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  403 

came  here  with  the  idea  of  carrying  out  the  whole  scheme  arranged 
between  Colonel  Ogorodnikoff  and  myself  in  Tientsin,  and  carrying  it 
through  with  the  aid  of  Mr.  Pavlow." 

"  What  did  that  include  ?  I  want  to  know  all — roughly."—"  A  press 
boat  was  to  be  bought,  and  we  were  to  ascertain  the  exact  details  of 
how  many  wounded  and  sick  there  were  there  and  what  medical  sup- 
plies and  instruments  were  necessary.  On  receipt  of  that  information 
we  were  to  form  an  International  Committee,  and  send  supplies  in.  Mr. 
Pavlow  and  I  discussed  this  scheme  and  estimated  that  it  would  absorb, 
as  a  whole,  Tls.  400,000." 

"  You  saw  Mr.  Pavlow  shortly  after  you  arrived  ?  " — "  That  same 
morning." 

"It  strikes  me  that  it  was  unnecessary  to  send  a  boat  to  ascertain 
if  supplies  were  wanted.  The  siege  had  then  been  proceeding  for  some 
time,  prosecuted  with  vigour  and  defended  with  bravery.  Was  it,  then, 
necessary  to  send  this  boat?  " — "  Certainly.  My  idea  was  to  find  out 
how  many  sick  and  wounded  there  were.  It  would  be  no  use  to  send 
a  small  steamer  if  there  were  a  great  many.  As  a  matter  of  fact,  to 
get  this  information,  ten  or  fifteen  junks  had  already  been  sent  from 
Chefoo,  but  they  had  all  been  captured  by  the  Japanese." 

"  Then  the  whole  thing  about  sending  in  medical  supplies  was  a 
humbug,  and  you  were  really  trying  to  run  the  blockade  to  get  infor- 
mation ?  " — "  We  did  not  try  to  run  the  blockade.  It  was  you  who 
suggested  that  we  tried." 

"  I  suggested  that  it  was  unnecessary  to  send  a  small  boat  to  find 
out  what  was  really  necessary.  If  you  could  get  a  hospital  ship  through 
at  all,  you  might  have  been  assured  that  there  must  have  been  many 
wounded  there.  Did  the  Samson  get  into  Port  Arthur?  " — "  She  got  in, 
but  not  into  the  harbour." 

"Did  she  get  near?" — "Very  near  indeed." 

"Was  her  object  to  find  out  about  the  wounded,  or  to  run  the 
blockade  and  bring  comfort  to  the  garrison?  " — "How  could  it  bring 
comfort?  " 

"  I  want  to  suggest  that  the  scheme  was  not  to  send  in  a  hospital 
ship  at  all,  but  that  you  were  engaged  in  many  other  matters  for  the 
Russian  Government." — "  They  were  all  comprised  in  that  one." 

"  Were  you  not  engaged  in  other  schemes  before  this  hospital  scheme 
came  up  ?  " — "  In  Tientsin,  certainly." 

"And  were  not  these  the  matters  you  came  down  to  Shanghai  to 
put  through?"— "No." 

"You  wrote  a  letter  to  Mr.  Pavlow,  giving  prices  asked  for  the 
Samson  and  the  Victoria,  and  said  the  captains  were  engaged,  cabling 
arrangements  made,  and  asked  further  about  a  cable?" — "Correct." 


404  LAWS   OF  NAVAL  WARFAHE.  [PART   III. 

"Was  that  not  the  scheme  you  came  down  here  about?" — "That 
was  suggested  by  Mr.  Pavlow,  but  I  have  tried  to  keep  it  out  of  this 
case." 

"  I  know  you  have  tried  to  keep  it  out ;  but  was  not  the  Samson 
really  bought  in  connection  with  this  proposed  cable  ?  " — "  Certainly 
not." 

"This  letter  is  dated  the  18th  of  October,  so  that  the  whole  mat- 
ter was  arranged  within  four  days  of  your  arrival  in  Shanghai  ?  " — 
"  Of  course,  because  the  purchase  had  been  prearranged  in  Tientsin." 

"  Then  it  was  arranged  in  Tientsin  to  purchase  the  Samson  ? " — 
"  Not  the  Samson  specifically,  but  a  press  boat." 

"  Your  letter  of  the  18th  of  October  does  not  mention  a  press  boat, 
but  it  does  mention  the  Samson  and  a  cable.  Was  that  a  mistake?  " 
— "  No." 

"Does  this  letter  mean  what  it  says?" — "Certainly." 

"  How  is  it  there  is  no  mention  of  the  press  boat  ?  " — "  That  was  the 
first  move  in  the  game." 

"  You  say  '  game  ' ;  was  this  a  genuine  enterprise,  or  was  it  not  ?  " — 
"  It  was  genuine  in  one  way,  and  in  another  way  it  was  not." 

"  Was  the  cable  scheme  genuine  ?  "— "  Which  ?  " 

"  The  one  referred  to  in  this  letter." — "  It  was  genuine  if  it  could 
be  laid  from  Port  Arthur  to  Chefoo." 

"  That  was  rather  important  to  the  Russian  Government  ?  " — "  I 
don't  know;  it' would  very  likely  have  been  cut  the  next  day." 

"  It  was  worth  considering  ?  " — "  Certainly." 

"It  was  to  cost  Taels  400,000 ?"—"  Nothing  of  the  sort." 

"  Have  you  not  in  writing  estimated  that  this  unimportant  side- 
show would  cost  Taels  400,000?" — "It  was  discussed  after  the  Samson 
was  bought,  and  when  Mr.  Pavlow  found  the  cost  the  proposal  was 
dropped." 

"  Considering  that  your  estimate  of  the  cost  of  it  was  Taels  400,000, 
was  it  not  worth  while  to  mention  it  as  part  of  the  scheme  ?  " — "  Cer- 
tainly." 

"  Was  that  the  scheme  referred  to  in  this  letter  ?  " — "  No ;  the  Sam- 
son was  not  suitable  for  laying  cable;  cable-laying  requires  a  special 
steamer.     The  Samson  might  lay  five  yards,  perhaps." 

"  But  you  could  hardly  borrow  the  Great  Northern's  cable  steamer 
under  circumstances  like  these?" — "No;  but  a  good  big  junk  could  do 
it;  we  had  experts  to  see  Mr.  Pavlow,  but  the  scheme  was  dropped." 

"  You  deny  that  the  cable  mentioned  in  this  letter  was  part  of  the 
scheme?" — "It  was  not  the  scheme." 

"And  the  matter  of  the  printing-press  was  also  not  the  scheme?" — 
"  It  was  not." 


CHAP.  V.]  NEWSPAPER   CORRESPONDENTS.  405 

"That  printing-press  was  useful  at  the  moment?" — "It  might  have 
been." 

"  Did  you  write,  on  the  14th  of  October,  about  a  printing-press  to 
Mr.  Pavlow  and  say  that  there  was  only  one  suitable  available,  the 
Daily  Press;  that  its  cost  would  be  $20,000,  and  that  it  would  be  ad- 
visable to  buy  it,  as  it  was  then  pro-Japanese,  and  thus  an  anti-Rus- 
sian organ  would  be  disposed  of  and  a  good  printing-press  obtained  at 
the  same  time  ?  " — "  Yes." 

"Was  that  a  matter  of  some  moment?" — "Mr.  Pavlow  promised 
to  buy  it." 

"Was  that  also  one  of  the  schemes?" — "It  was  not  the  important 
scheme.  Mr.  Pavlow  wrote  me  that  my  presence  in  Chefoo  was  abso- 
lutely necessary  and  that  the  matter  of  the  printing-press  could  stand 
over." 

"  Did  you  consider  it  of  sufficient  importance  to  threaten  Mr.  Pav- 
low with  an  expose"  of  the  buying  of  it  when  you  sent  in  your  claim 
later  on?" — "I  did  not;  I  did  say  that  a  promise  was  made  to  me 
about  it  and  was  not  kept." 

"  Did  you  write  this  letter  (threatening  an  expose  of  the  purchase 
of  newspapers)  ?  " — "  Yes,  but  about  another  printing-press.  This  one 
had  nothing  to  do  with  Mr.  Pavlow." 

"  At  any  rate,  in  addition  to  the  unimportant  matter  of  the  cable, 
there  was  the  question  of  subsidising  certain  newspapers  in  regard  to 
which  you  threatened  to  make  exposures  ?  " — "  I  said  that  if  Mr.  Pav- 
low forced  me  into  court  I  should  no  doubt  be  examined  and  have  to 
expose  these  things." 

"  Did  you  take  no  steps  in  regard  to  subsidising  a  paper  in  Shang- 
hai ?"—"  Certainly  not." 

"  Did  your  work  in  connection  with  the  papers  fall  through  ?  " — 
"Which  paper?  Mr.  Pavlow  did  not  buy  the  Daily  Press — the  paper 
is  still  in  existence." 

"And  is  not  writing  pro-Russian?" — "It  could  not  be  more  pro- 
Russian." 

"  That  might  be  from  conviction.  Was  anything  paid  to  a  news- 
paper in  Shanghai  ?  " — "  With  the  exception  of  $3000  or  $4000  a  month, 
there  was  not." 

"  Pid  the  cable  scheme  fall  through  ?  "— "  Yes." 

"  Then  the  object  for  which  the  Samson  was  bought  was  simply 
that  she  might  get  into  Port  Arthur,  and  find  out  more  or  less  concern- 
ing the  state  of  the  garrison  and  other  things?" — "Correct,  but  not 
exactly  in  regard  to  '  other  things.'  " 

"Was  the  object  simply  to  find  out  the  state  of  the  garrison?" — 
"  It  would  not  be  reasonable  not  to  find  out  as  much  as  possible  about 


406  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

the  state  of  the  garrison,  but  the  real  reason  for  sending  her  was  to 
find  out  about  hospital  needs.  Mr.  Burleigh  might  try  to  get  any  other 
information  for  newspaper  purposes." 

"What  was  the   cost  of  the  Samson  ? "— "  Tls.   105,000,  nominally; 
Tls.  95,000,  actually." 


CHAPTEE  VI. 

BOMBAKDMENT    OF    SEA    COASTS. 

In  the  course  of  the  Kusso-Japanese  War  instances  of  coast 
bombardment  were  by  no  means  few,  being  chiefly  at  fortified 
places.     Below  is  a  list  of  the  coast  bombardments: 

March  6,  1904,  the  Kamimura  Squadron  fired  at  Vladivostoek. 

May  1,  1904,  the  Hosoya  Squadron  bombarded  the  coast  of  An-tung- 
hsien,  the  enemy  returning  the  fire  all  the  while. 

May  16,  1904,  a  warship,  commanded  by  Commander  Togo,  fired  at 
Kai-chow,  with  the  view  of  covering  land  forces. 

May  25,  1904,  the  Tsukushi,  the  Heiyen,  the  Akagi,  the  Chokai, 
and  a  flotilla  of  torpedo  boats  fired  upon  Chin-chow  Bay,  with  the  view 
of  covering  land  forces. 

Besides  the  above,  bombardment  took  place  at  Ta-ing-kow, 
Kai-ping,  Ing-cheng-tsu,  Kai-ping-ku,  Hsiung-yo-ho-kow,  and 
Hehlung  Kiang,  which  were  either  occupied  or  fortified  by  the 
enemy. 

The  following  reports  are  quoted  as  examples  of  the  bom- 
bardments : 

BOMBARDMENT   OF    KAIPING    AND   KINCHOW.1 

May  16-17,  1904. 
{Rear-Admiral  Togo's  report,  received  in  Tokyo  on  May  19,  190%.) 
With  the  Asahi,  Akitsuskima,  Chiyoda,  Suma,  Oshima,  Uji,  and  the 
Fourteenth  Torpedo-boat  Flotilla,  I  left  a  certain  basis  very  early  in 
the  morning  of  the  15th  inst.,  and  arrived  off  Port  Arthur  a  little  be- 
fore noon.  On  learning  that  the  Hatsuse  had  struck  two  of  the  enemy's 
mechanical  mines,  I  despatched  the  Oshima,  Uji,  and  the  torpedo  flo- 
tilla on  their  prearranged  mission,  and  ordered  the  rest  of  my  squadron 
to   co-operate  with   the    Shikishima,   Tashima,  Kasagi,   and   the  other 

1  Russo-Japanese  War,  Japanese  Official  Reports  in  English,  pp.  49-50. 

407 


408  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

vessels  in   repelling  the  enemy's  destroyers,   which  were   attacking   us, 
and  in  rescuing  the  crew  of  the  Hatsuse. 

Towards  dusk  our  squadron  proceeded  on  its  original  mission,  and 
entered  the  Gulf  of  Pe-chi-li,  arriving  in  the  vicinity  of  Ta-shan  on  the 
16th  at  noon.  We  then  reconnoitred  the  coast  in  the  neighbourhood 
of  Kaiping,  and  observing  some  Russian  troops  on  shore,  fired  at  .them. 
The  enemy  instantly  fled.  On  the  afternoon  of  the  17th,  after  dragging 
the  sea  for  mines,  we  entered  Kin-chow  Bay,  and  the  gunboats  ap- 
proached the  head  of  the  bay.  They  opened  fire  on  the  railway  bridges, 
a  military  train  which  was  just  passing,  and  on  the  enemy's  buildings. 
The  bombardment  is  believed  to  have  inflicted  some  damage  on  the 
enemy. 

BOMBARDMENT   OF    KAIPING    AND    NEIGHBOURHOOD. 

June  7  and  8. 
{Admiral  Togo's  report,  received  in  Tokyo  on  June  12,  190%.) 
On  the  7th  and  8th  inst.  the  Sixth  Fighting  Squadron,  acting  as  pre- 
arranged, bombarded  the  enemy  stationed  along  the  coast  between  the 
Kaiping  promontory  and  the  mouth  of  the  Hiunyoh  river,  and  also 
reconnoitred  the  coast  facing  the  Liaotung  Bay.  The  squadron  returned 
this  "morning,  and  reports  as  follows:  The  enemy  has  placed  about 
3000  infantry  and  cavalry  along  the  coast  near  Kaiping,  in  order  to 
prevent  the  Japanese  from  landing  there.  According  to  the  natives, 
outposts  have  been  placed  at  several  points  along  the  coast,  but  the 
Russians  who  were  stationed  at  those  places  have  fled  to  the  interior, 
owing  to  the  bombardment  by  the  squadron.  During  the  bombardment 
on  the  7th,  a  southward  bound  train  appeared  in  sight,  but  stopped  at 
a  point  about  seven  and  a  half  miles  from  Hiun-yoh-cheng,  and  im- 
mediately steamed  northward.  Since  then,  up  to  the  8th,  no  trains 
have  passed  the  neighbourhood.  On  that  date  the  squadron  fired  at 
two  companies  of  the  enemy's  infantry  and  a  squadron  of  cavalry,  in 
the  vicinity  of  Kaiping  Promontory,  and  inflicted  serious  damage  on 
them.  The  captain  of  the  foreign  steamer  which  left  Yingkow  on  the 
7th  states  that,  scared  by  the  bombardment  of  our  squadron,  the  3000 
Russian  troops,  with  20  guns,  who  had  been  stationed  at  that  port,  have 
left  there  for  the  north.  Again,  on  the  8th,  the  Tenth  Torpedo  Flotilla 
captured  two  Russian  soldiers  at  Fuchow  Bay.  The  prisoners  came  from 
Man-kia-ling,  in  Hing-teh-hein,  and  were  leaving  Fuchow  Bay  for  Port 
Arthur  by  sea.  They  belonged  to  the  first  regiment  of  the  Fourth 
Cavalry  Brigade,  and  state  that  two  regiments  of  infantry  and  a 
regiment  and  a  half  of  cavalry,  with  eight  guns,  commanded  by  Major- 
General  Samson,   arrived   at  Man-kia-ling,  Wa-fang-keu,  and  Wa-fang- 


CHAP.  VI.]  BOMBARDMENT  OF  SEA  COASTS.  409 

tien  on  two  occasions  between  May  28  and  31.  This  statement  con- 
cerning the  Russian  forces  agrees  with  the  report  of  the  Chinese  that 
the  Russians  in  this  vicinity  numbered  5000.  The  prisoners  also  state 
that  trains  are  arriving  at  Mankialing  three  or  four  times  daily  from 
the  north,  but  seldom  proceed  farther  south.  When  they  do  go  south, 
they  run  slowly  as  far  as  Wa-fang-ken.  The  captives  possess  numerous 
official  documents. 

PARTICULARS  OF   THE   BOMBARDMENT   OF  UNGKWI   BAY. 

July  17th,  1905. 

The  Asahi  publishes  an  account  of  the  bombardment  of  Ungkwi  Bay, 
Northern  Korea,  by  Vice- Admiral  Kamimura's  squadron,  substantially 
as  follows: 

It  was  before  dawn  on  the  17th  that  the  squadron  reached  the  Sea 
of  Chosanwan,  the  only  strategical  position  in  the  south  of  the  Tumen. 
At  first  the  Chitose  and  the  destroyers  were  sent  into  the  bay.  As  no 
pickets  or  watch  of  the  enemy  were  observed  on  the  shore,  the  de- 
stroyers cruised  around  the  bay.  There  were  a  few  Korean  fishing  boats, 
which  were,  however,  free  from  suspicion.  The  destroyers  then  entered 
Ungkwi  Bay,  which  is  a  small  inlet  within  Chosanwan,  and  approached 
the  shore.  About  the  same  time  some  200  Russian  infantry  and  cav- 
alry, who  were  on  a  knoll  on  the  shore,  opened  fire  with  their  rifles. 
Heedless  of  the  fire,  our  destroyers  approached  the  coast,  and  at  8.30 
a.m.  began  to  shell  the  enemy.  The  shells  fell  with  remarkable  accu- 
racy among  the  men  and  horses  on  the  Russian  side,  many  of  whom 
were  killed  and  smashed  in  a  terrific  manner,  and  in  less  than  half  an 
hour  the  enemy  were  completely  dispersed.  The  destroyers  then  re- 
ported the  fact  to  the  main  squadron,  and  at  9.30  a.m.  they,  accom- 
panied by  the  Chiwaya,  left  the  bay  for  another  bay  called  Lojinwan, 
10  miles  to  the  south.  Five  or  six  Russians  were  observed  on  the  coast, 
but  they  fled  as  soon  as  they  saw  our  fleet.  The  Chiwaya  and  de- 
stroyers then  bombarded  and  destroyed  the  enemy's  watch-house  on 
the  summit  of  Geka  promontory,  and  a  party  of  our  marines  landed. 
The  latter,  without  meeting  with  any  resistance  from  the  enemy,  recon- 
noitred the  place,  and  returned  to  their  vessels,  which  left  the  bay  the 
following  day  at  1  a.m.  The  road  in  the  neighbourhood  seems  to  have 
been  newly  constructed  by  the  enemy,  and  is  available  for  the  trans- 
port of  guns.  The  enemy's  forces  on  the  Tumen  are  about  21,000  or 
22,000,  with  70  guns. 

On  the  4th  of  August,  1905,  the  following  report  appeared 
in  The  Japan  Times: 


410  LAWS   OF  NAVAL  WARFARE.  [PART   III. 

THE  BOMBARDMENT    OF   KASTRIE   BAY. 

In  connection  with  the  recent  bombardment  of  Kastrie  Bay,  Siberian 
coast,  an  Aomori  despatch  reports  substantially  as  follows: 

The  weather  was  very  fine  when  our  squadron  approached  Kastrie 
Bay  on  the  24th  ult.  On  arrival  at  Kresterkamp  Point,  a  scouting 
party  was  landed,  which,  however,  failed  to  discover  any  signs  of  Rus- 
sian troops  or  inhabitants.  In  order  to  survey  the  neighbouring  coun- 
try, our  men  ascended  the  lighthouse,  and  observed  a  Russian  officer 
in  command  of  a  battery  of  guns  on  one  of  the  islands.  In  the  mean- 
time our  squadron  had  entered  far  into  the  bay,  whereupon  the  enemy 
opened  fire,  but  few  of  their  shells  hit  our  vessels.  Our  squadron  im- 
mediately responded,  and  succeeded  in  silencing  the  enemy's  guns  after 
a  severe  bombardment,  lasting  an  hour.  The  town  was  subsequently 
set  on  fire  and  the  sound  of  a  terrible  explosion  was  heard. 

During  the  war,  Eussia  bombarded  Gensan  in  Korea.  The 
report  appeared  in  The  Japan  Times  as  follows : 

The  Japanese  Consul  at  Gensan  wires,  under  date  of  June  30,  that 
at  10  o'clock  that  morning  there  was  a  heavy  rainfall,  with  mist,  so 
that  it  was  impossible  to  discern  anything  beyond  a  distance  of  two 
miles  at  sea.  The  Russian  warships  seem  to  have  returned  north. 
Under  the  circumstances  the  Japanese  at  Gensan  were  exposed  to  great 
danger,  so  that  the  Consul,  and  the  commander  of  the  garrison  con- 
cluded that  the  residents  should  withdraw  from  Gensan.  Two  Japanese 
soldiers  and  two  Koreans  were  slightly  wounded  during  the  bombard- 
ment. A  shell  struck  one  of  the  Japanese  Consulate  houses,  and  several 
other  houses  were  also  set  on  fire.  Fire  broke  out  at  two  places,  but  it 
was  instantly  put  out.  Altogether,  the  damage  inflicted  was  quite 
insignificant. 

A  Soul  despatch,  dated  June  30,  3.58  p.m.,  states  that  telegraphic 
communication  between  Soul  and  Gensan,  which  was  interrupted  owing 
to  the  bombardment  of  the  Russian  torpedo  boats  on  the  morning  of 
that  day,  has  been  restored. 

According  to  a  Fusan  telegram  to  the  Tokyo  Asahi,  some  of  the 
Russian  torpedo  boats,  which  after  the  bombardment  left  Gensan  in 
company  with  the  remainder  of  the  Vladivostock  Squadron,  again  ap- 
peared at  Gensan  shortly  afterwards,  and  they  seem  to  have  laid  me- 
chanical mines  in  the  harbour. 

The  Eussian  bombardment  at  Gensan,  however,  could  not 
be  free  from  some  debate,  for  it  is  a  trade  port  without  any 
fortification. 


CHAP.  VI.]  BOMBARDMENT  OF  SEA   COASTS.  411 

In  the  East,  a  trade  port  provided  with  a  foreign  settle- 
ment was  generally  exempt  from  bombardment,  as  is  well  exem- 
plified by  the  protest  filed  by  General  Freemantle,  by  virtue  of 
which  Shanghai  and  Chefoo  escaped  bombardment,  because 
they  were  trade  ports,  just  as  was  Gensan,  fired  at  by  the  Kus- 
sian  Navy. 

In  the  earlier  days  of  the  Eusso-Japanese  War,  a  bombard- 
ment at  San-shan  Island  was  erroneously  reported,  which  was 
substantially  as  follows: 

THE    SAN-SHAN   ISLAND   AFFAIR. 

In  an  official  note  addressed  to  the  Imperial  Minister  for  Foreign 
Affairs,  under  date  of  March  24,  the  French  Minister  at  Tokyo  stated 
that  a  communication  had  been  received  by  his  government  from  the 
Russian  Government,  to  the  effect  that  on  March  10  a  Japanese  Squad- 
ron, steaming  off  the  east  of  San-shan  Island,  fired  fifty  shots  at  the 
quarantine  station  on  the  island,  causing  serious  damage  to  the  build- 
ings. At  the  request  of  the  St.  Petersburg  Government,  M.  Harmand 
called  the  attention  of  Baron  Komura  to  the  matter,  as  the  bombard- 
ment of  the  quarantine  station  constituted  an  infraction  of  Art.  XXV. 
of  the  appendix  of  The  Hague  Convention. 

In  answer  to  the  communication,  Baron  Komura  stated  that  the 
Imperial  Government  had  not  yet  received  any  report  on  the  subject 
from  the  Commander  of  the  Japanese  Fleet,  but  the  Government  was  of 
the  opinion  that  the  Article  in  question  referred  only  to  land  opera- 
tions, and  was  not  intended  to  cover  the  actions  of  war-vessels. 

So  far  as  is  hitherto  known  to  the  authorities  of  the  Im- 
perial Navy,  there  was  no  quarantine  station  on  the  San-shan 
Island,  and  there  were  scarcely  any  public  buildings  there  ex- 
cept the  signal  tower  belonging  to  the  Eussian  Navy.  The 
French  Minister,  who  was  "  quick  to  correct  his  own  error," 
withdrew  his  protest  at  once,  when  he  found  out  the  truth  of 
the  matter. 

This  made  it  plain  enough  that  there  was  no  blunder  on 
Japan's  part;  but  the  fault  of  the  St.  Petersburg  Government 
in  making  a  false  report  became  plain  enough  in  just  the  same 
proportion. 

It  could  not  be  avoided  that  this  false  accusation  should, 


412  LAWS   OF  NAVAL  WARFARE.  [PART   III. 


in  some  measure,  move  the  world.  But  it  was  fortunate  enough 
for  the  scholars  of  the  world  that  Dr.  Holland  heard  of  this 
bombardment,  and  then  published  his  own  views  on  the  subject, 
which  he  had  long  investigated. 

"Naval  Bombardment  of  Unfortified  Places"1 

To  the  Editor  of  the  Times. 
Sir: 

The  protest  reported  to  have  been  lodged  by  the  Russian  Govern- 
ment against  the  bombardment  by  the  Japanese  Fleet  of  a  quarantine 
station  on  the  island  of  San-shan-tao,  apart  from  questions  of  fact,  as 
to  which  we  have  as  yet  no  reliable  information,  calls  attention  to  a 
question  of  International  Law  of  no  slight  importance,  viz.,  under  what, 
if  any,  circumstances  is  it  permissible  for  a  naval  force  to  bombard  an 
"open"  coast  town? 

In  the  first  place,  it  may  be  hardly  necessary  to  point  out  the 
irrelevancy  of  the  reference,  alleged  to  have  been  made  in  the  Russian 
Note,  to  "  Art.  XXV.  of  The  Hague  Convention."  The  convention,  and 
the  ruling  annexed  to  it  are,  of  course,  exclusively  applicable  to  "  la 
guerre  sur  terre."  Not  only,  however,  would  any  mention  of  a  naval 
bombardment  have  been  out  of  place  in  that  "  reglement,"  but  a  proposal 
to  bring  such  action  within  the  scope  of  its  25th  article,  which  pro- 
hibits "  the  attack  or  bombardment  of  towns,  villages,  habitations,  or 
buildings  which  are  not  defended,"  was  expressly  negatived  by  the  con- 
ference of  The  Hague.  It  became  abundantly  clear,  during  the  discus- 
sion of  this  proposal,  that  the  only  chance  of  an  agreement  being 
arrived  at  was  that  any  allusion  to  maritime  warfare  should  be  care- 
fully avoided.  It  was  further  ultimately  admitted,  even  by  the  advo- 
cates of  the  proposal,  that  the  considerations  applicable  to  bombardments 
by  an  army  and  by  a  naval  force,  respectively,  are  not  identical.  It 
was,  for  instance,  urged  that  an  army  has  means  other  than  those 
which  may  alone  be  available  to  a  fleet  for  obtaining  from  an  open 
town  absolutely  needful  supplies. 

The  Hague  conference,  therefore,  left  the  matter  where  it  found  it, 
recording,  however,  among  its  wishes  (voeux),  one  to  the  effect  "that 
the  proposal  to  regulate  the  question  of  the  bombardment  of  ports, 
towns,  and  villages  by  a  naval  force  should  be  referred  for  examination 
to  a  future  conference." 

The  topic  is  not  a  new  one.     You,  sir,  allowed   me  to  raise  it  in 
your  columns  with   reference  to  the  naval  manoeuvres   of   1882,  when 
a    controversy  ensued   which  disclosed   the  existence  of   a  considerable 
I  The  Times,  April  4,  1904. 


CHAP.  VI.]  BOMBARDMENT  OF  SEA   COASTS.  413 

amount  of  naval  opinion  in  favour  of  practices  which  I  ventured  to 
think  in  contravention  of  International  Law.  It  was  also  thoroughly- 
debated  in  1896  at  the  Venice  meeting  of  the  Institut  de  Droit  Inter- 
national, upon  a  report  drafted  by  myself  as  chairman  of  a  committee 
appointed  a  year  previously.  This  report  lays  down  that  the  restric- 
tions placed  by  International  Law  upon  bombardment  on  land  apply 
also  to  those  effected  from  the  sea,  except  that  such  operations  are 
lawful  for  a  naval  force  when  undertaken  with  a  view  to  (1)  obtain- 
ing supplies  of  which  it  is  in  need;  (2)  destroying  munitions  of  war  or 
warships  which  may  be  in  a  port;  (3)  punishing,  by  way  of  reprisal, 
violations  by  the  enemy  of  the  laws  of  war.  Bombardments  for  the 
purpose  of  exacting  a  ransom  or  of  putting  pressure  upon  the  hostile 
power  by  injury  to  peaceful  individuals  or  their  property  were  to  be 
unlawful.  The  views  of  the  committee  were,  in  substance,  adopted  by 
the  institute,  with  the  omission  only  of  the  paragraph  allowing  bom- 
bardment by  way  of  reprisal. 

I  am,  sir,  your  obedient  servant, 
Oxford,  April  2.  T.  E.  Holland. 

Eecently  The  Second  Hague  Conference  passed  the  follow- 
ing Convention : 

(Translation.) 
Convention  Respecting  Bombardments  by  Naval  Forces  in  Time  of  War. 

Chapter  I.     The  bombardment  of  undefended  ports,  towns,  villages, 
dwellings,  or  buildings. 

Article  I. 

Naval  forces  are  forbidden  to  bombard  ports,  cities,  villages,  habita- 
tions, or  buildings  which  are  not  defended. 

A  place  must  not  be  bombarded  for  the  sole  reason  that  there  are 
automatic  submarine  contact  mines  anchored  in  front  of  its  port. 

Article  II. 

Military  works,  military  or  naval  establishments,  depots  of  arms  or 
material  of  war,  shops  and  establishments  suitable  to  be  utilised  for 
the  needs  of  the  enemy's  army  or  navy,  and  vessels  of  war  then  in  the 
port  are  not  included  in  this  prohibition,  and  the  commander  of  a  naval 
force  may,  after  demand  and  a  reasonable  delay,  destroy  them  by  can- 
non, if  no  other  measures  are  possible,  and  if  the  local  authorities  have 
not  proceeded  to  such  destruction  within  the  time  fixed. 

The  commander  incurs  no  responsibility  in  this  case  for  the  acci- 
dental damage  which  may  be  occasioned  by  the  bombardment. 


414  LAWS   OF  NAVAL   WARFARE.  [PART   III. 

If  military  necessity,  requiring  immediate  action,  does  not  permit 
a  delay  to  be  accorded,  it  is  understood  that  the  prohibition  of  bom- 
bardment of  the  undefended  city  applies,  as  in  the  case  treated  in  para- 
graph 1,  and  that  the  commander  must  take  the  necessary  measures  to 
relieve  the  city  as  much  as  possible  of  distress. 

Article  III. 

After  express  notification,  the  bombardment  of  undefended  ports, 
cities,  villages,  habitations,  or  buildings  may  be  proceeded  with,  if  the 
local  authorities,  having  received  formal  summons,  refuse  to  comply 
with  the  requisitions  for  supplies  or  provisions  necessary  at  the  time 
for  the  needs  of  the  naval  force  in  the  locality. 

These  requisitions  shall  be  in  proportion  to  the  resources  of  the 
locality.  They  shall  not  be  made  except  with  the  authorisation  of  the 
commander  of  the  said  naval  forces,  and  they  shall  be,  as  far  as  pos- 
sible, paid  for  in  cash;  otherwise  receipts  shall  be  given. 

Article  IV. 
It  is  forbidden  to  bombard,  for  the  nonpayment  of  contributions  in 
money,  undefended  ports,  cities,  villages,  habitations,  or  buildings. 

Chapter  II.    General  provisions. 
Article  V. 

In  bombardment  by  naval  forces  all  the  necessary  precautions  shall 
be  taken  by  the  commander  to  spare,  as  far  as  possible,  historic  monu- 
ments, edifices  devoted  to  worship,  to  art,  to  science,  and  to  charity, 
and  hospitals  and  places  where  there  are  sick  and  wounded,  on  condi- 
tion that  they  be  not  used  at  the  same  time  for  military  purposes. 

It  is  the  duty  of  the  inhabitants  to  designate  these  monuments, 
buildings,  or  places  of  assembly  by  visible  signs,  which  shall  consist  of 
large,  stiff  rectangles,  divided  diagonally  into  two  triangles,  the  upper 
one  black  and  the  lower  white. 

Article  VI. 
Except  in  case  where  military  necessities  do   not  permit,  the  com- 
mander of  the  attacking  naval  force  shall,  before  beginning  bombard- 
ment, do  everything  in  his  power  to  warn  the  authorities. 

Article  VII. 
It  is  forbidden  to  abandon  a  city  or  locality  to  pillage,  even  when 
taken  by  assault. 

Professor  Westlake  remarks  in  his  work  on  Art.  I.  of  this 
Convention  as  follows :  * 

1  Westlake's  International  Law,  Part  II.,  p.  315. 


\ 


CHAP.  VI.]  BOMBARDMENT   OF   SEA   COASTS.  415 

Kefusals  to  accept  the  second  paragraph,  Art.  L,  were  reg- 
istered by  Great  Britain,  France,  Germany,  Japan,  and  Chile. 
They  were  right.  A  place  cannot  be  deemed  undefended  when 
means  are  taken  to  prevent  an  enemy  from  occupying  it.  The 
price  of  immunity  from  bombardment  is  that  the  place  shall 
be  left  open  to  the  enemy  to  enter. 


PART  IV. 
NEUTRALITY 


CHAPTER   I. 
RUSSIAN   WARSHIPS    IN    NEUTRAL   PORTS. 

The  following  is  the  table  showing  Russian  vessels  in  neu- 
tral ports: 


Name. 


In  Shanghai. 
Mandjur 

Askold 

Grozovoi 

Bodri 

Korea 

Meteor 

Svir 

Curonia 

Livonia 

Vladimir 

Yaroslave 

Voroneji 

In  Chefoo. 
Ryeshitelni .... 
Ratstoropny.  .  . 

Vlastni 

Serditi 

Skori 

Statni 

In  Kiao-chau. 

Tzesarevitch. .  . 
Bezposhchadni . 
Bazstrachini . . . 
Bezshumni. .  .  . 

Boiki 

Smyeli 


Classification. 


Gunboat 

Cruiser 

Destroyer' 

it 

Special   service 
ship 

(I 

a 

Transport 

u 

Volunteer  Fleet 


Destroyer 


Battleship 
Destroyer . 


,2fl3 

a  a 


1,224 

5,905 
312 
350 

6,163 
4,259 
6,000 
1,658 
1,048 

10,750 
8,950 

10,750 


240 

312 
240 


12,912 
350 


240 


Entered. 


Before  the 

war. 
13,  VIII.,  '04 
12,  VIII.,  '04 

4,  VI.,  '05 

29,  V.,  '05 
25,  V.,  '05 
29,  V.,  '05 
25,  V.,  '05 


11,  VIII., '04 

16,  XL, '04 

2, 1.,  '05 


11,  VIII.,  '04 
1,  VIII.,  '04 


2,     I.,  '05 


Disarmed. 


30,  III.,  '04 

31,  VIII., '04 
tt 

VI.,  '05 


Detained. 

Blown  up. 

1,'05 


15,  VIII.,  '05 


4,     I.,  '05 


417 


418 

NEUTRALITY. 

[part  IV. 

Name. 

Classification. 

a  i 

Entered. 

Disarmed. 

In  Manilla. 

Aurora 

Oleg 

Cruiser 

u 

u 
Corv.  Cruiser 

6,731 
6,645 
3,103 

6,731 
10,225 

3,  VI.,  '05 
ti 

n 
24,  VIII.,  '04 

12,  IX.,  '04 
29,  VI.,  '05 

VI.,  '05 

ti 

Zamtchug 

In  Saigon. 
Diana 

In  San  Fran- 
cisco. 
Lena 

In  Batavia. 
Terek 

(t 

10,  IX.,  '04 
IX.,  '04 

Sect.  I.     Russian  Warships  at  Shanghai. 
I.     The  Mandjur  Affair. 

The  enforcement  of  internment  and  disarmament  of  a  bel- 
ligerent warship  in  neutral  ports  after  the  expiration  of  a  cer- 
tain term  granted  may  be  regarded  as  a  new  item  added  as  a 
direct  result  of  the  late  war  to  stipulations  of  International 
Law,  and  the  Mandjur  affair  now  under  consideration  was  the 
very  first  one  of  many  cases  which  contributed  to  the  establish- 
ment of  the  new  understanding,  though  in  the  particular  case,, 
slight  differences  existed  from  other  similar  affairs  in  the  time 
and  place  of  its  sojourn. 

The  following  report  is  here  inserted  as  containing  the  most 
reliable  particulars  of  the  affair: 


The  Russian  gunboat  Mandjur  (1224  tons),  which  had  been  staying 
for  some  time  at  Shanghai  prior  to  the  outbreak  of  the  Russo-Japanese 
war,  had  taken  on  board  a  large  quantity  of  coal  since  February  10th, 
1904.  On  the  11th  she  was  brought  alongside  the  quay  facing  the 
Chinese  Eastern  Railway  Company's  godown,  and  a  large  quantity  of 
ammunition  was  taken  on  board.  Upon  this,  on  Feb.  11th,  the  Japa- 
nese Consul-General  at  Shanghai  called  the  attention  of  the  Chinese 
local  authorities  to  the  matter.  The  Tao-tai  of  Shanghai  demanded  the 
commander  of  the  Mandjur  to  leave  the  port  as  soon  as  possible,  but 


CHAP.  L,  SECT.  I.]      THE   MANDJUR   IN   SHANGHAI.  419 

the  latter  would  not  consent.  The  Chinese  Government  proclaimed  their 
rules  of  neutrality  about  the  middle  of  February,  according  to  which 
belligerent  warships  were  prohibited  from  staying  more  than  24  hours 
in  any  Chinese  port,  except  in  certain  specified  cases.  Consequently, 
on  Feb.  19th,  the  Imperial  Government  instructed  the  Japanese  Consul- 
General  at  Shanghai  to  demand  the  Chinese  local  authorities  to  urge 
the  departure  of  the  Mandjur,  pointing  out  that  her  presence  at  Shang- 
hai constituted  not  only  a  menace  to  trade,  but  also  a  gross  violation 
of  the  rules  of  neutrality  proclaimed  by  the  Chinese  Government,  and 
at  the  same  time  to  announce  that  H.  I.  J.  M.  S.  Akitsushima,  which 
proceeded  to  Woosung  on  Feb.  19th,  would  leave  within  24  hours,  in 
accordance  with  the  said  rules. 

Thereupon  the  Shanghai  Tao-tai  sent  a  note  to  the  Kussian  Consul- 
General  demanding  the  withdrawal  of  the  Mandjur  within  24  hours, 
commencing  from  5  p.m.,  February  20th,  to  which  the  Russian  Consul 
replied  to  the  effect  that,  as  certain  arrangements  had  been  made  be- 
tween the  Russian  Minister  to  China  and  the  Wai-wu-pu,  he  desired  to 
do  nothing  until  he  received  instructions  from  the  Russian  Minister. 

On  February  22nd  the  Imperial  Government  instructed  the  Japanese 
Minister  to  China  to  declare  to  the  Chinese  Government  that  in  case 
of  the  non-withdrawal  of  the  Mandjur  from  Shanghai  within  the  pre- 
scribed time,  the  Chinese  Government  should,  by  her  right  of  neutrality, 
put  the  gunboat  in  such  a  condition  during  the  continuance  of  the  war 
as  to  be  unable  to  participate  in  belligerent  action,  and  that  in  case  of 
the  failure  to  effect  this  obligation  of  neutrality  on  the  part  of  China, 
the  Imperial  Government  would  be  forced  to  send  their  warships  to 
Shanghai,  and  that  the  Chinese  Government  would  be  held  responsible 
for  any  consequences  arising  out  of  it. 

On  February  24th  the  Chinese  Government  requested  the  acceptance 
by  the  Imperial  Government  of  the  following  arrangements  agreed  upon 
between  the  Chinese  Government  and  the  Russian  Minister  to  China, 
by  which  the  Mandjur  was  to  be  disarmed,  leaving  her  guns,  rifles, 
and  ammunition  in  charge  of  the  Municipal  Council,  the  Russian  Min- 
ister to  solemnly  promise  by  an  official  communication  that  the  gun- 
boat would  not  leave  Shanghai  until  the  termination  of  the  war.  But 
the  Imperial  Government  did  not  regard  the  above  arrangement  as  a 
satisfactory  guarantee  for  the  future,  and  replied  to  the  Chinese  Gov- 
ernment that  the  Imperial  Government  deemed  it  essential  either  to 
remove  the  machinery  necessary  for  navigation,  or  to  place  her  under 
the  direct  control  of  the  Chinese  Government. 

Upon  this,  further  negotiations  were  carried  on  between  the  Chinese 
Government  and  the  Russian  Minister,  and  the  Shanghai  Tao-tai,  on 
March  7th,  informed  the  Japanese  Consul-General  at  Shanghai  that  he 


420  NEUTRALITY.  [PART  IV. 

had  demanded  the  Russian  Consul-General  to  remove  the  breech-blocks 
of  guns,  rifles,  ammunitions,  and  necessary  machinery  from  the  gun- 
boat, and  at  the  same  time  requested  the  withdrawal  of  the  Japanese 
warship  from  Woosung. 

On  March  10th  a  proposal  was  made  to  the  Japanese  Consul-Gen- 
eral at  Shanghai  by  the  French  Consul,  at  the  request  of  the  Russian 
authorities,  that  if  it  was  not  objectionable  to  the  Imperial  Govern- 
ment, the  greater  part  of  the  crew  of  the  Mandjur  would  be  sent  home 
by  a  French  mail  steamer,  and  that  before  their  departure,  a  written 
pledge  would  be  given  that  they  would  not  participate  in  the  present 
war.  The  Imperial  Government  replied  through  the  Consul-General  that 
they  had  no  objection  to  sending  the  greater  part  of  the  crew  home 
under  the  written  pledge  not  to  engage  in  hostile  acts  against  Japan 
during  the  present  war.  The  disarmament  of  the  Mandjur  was  slowly 
carried  out  then  by  removing  the  breech-blocks  of  the  guns  and  •  by 
transshipping  her  ammunition  to  the  Chinese  warship  Nansoy.  Mean- 
while the  Shanghai  Customs  authorities  expressed  a  desire  to  the  Japa- 
nese Consul-General  to  leave  the  shells  on  board  the  ship,  as  they  feared 
accidents  in  handling  the  same,  and  the  Imperial  Government  gave 
their  consent  thereto,  and  at  the  same  time  instructed  the  Japanese 
Minister  at  Peking  to  urge  upon  the  Chinese  Government  to  bring  about 
a  speedy  solution  of  the  Mandjur  question. 

On  March  21st  the  Japanese  Consul-General  at  Shanghai  telegraphed 
that,  as  it  was  inconvenient  for  the  Shanghai  Customs  authorities  to 
take  charge  of  the  rifles  and  revolvers  and  keep  them  in  good  condition, 
they  wished  to  leave  them  also  on  board  the  Mandjur,  now  that  the 
necessary  machinery  as  well  as  the  ammunition  was  to  be  landed.  This 
was  also  consented  to  by  the  Imperial  Government. 

On  March  23rd  the  Russian  Minister  to  China  demanded  that  the 
Chinese  Government  cause  the  Japanese  warship  to  withdraw  at  once 
from  the  port,  on  the  ground  that  the  disarmament  of  the  Russian  war- 
ship had  been  completed.  To  this  the  Wai-wu-pu  replied  that  unless 
the  necessary  machinery  was,  in  accordance  with  previous  arrangement, 
removed  from  the  Russian  warship,  they  could  not  demand  the  with- 
drawal of  the  Japanese  man-of-war.  On  March  29th  the  Mandjur  was 
moored  alongside  the  wharf  of  the  Chinese  Eastern  Railway  Company, 
and  the  vital  part  of  her  machinery  at  last  landed.  The  written  pledge 
given  by  the  commander  of  the  Russian  warship  (concerning  the  crew 
who  were  to  be  sent  home  by  the  French  mail  leaving  on  March  30th) 
was  handed,  through  the  French  Consul,  to  the  Japanese  Consul-General 
at  Shanghai. 

On  March  30th  the  Japanese  Consul-General  at  Shanghai,  together 
with  the  commander  of  the  Akitsushima,  inspected  the  arms  removed 


CHAP.  L,  SECT.  I.]      THE    MANDJUR   IN   SHANGHAI.  421 

from  the  Russian  warship.  As  everything  proved  quite  satisfactory,  the 
Akitsushima  cleared  out  of  the  port  on  March  31st,  upon  receipt  of 
telegraphic  instructions,  and  the  Imperial  Japanese  Minister  at  Peking 
was  instructed  to  communicate  the  above  fact  to  the  Chinese  Gov- 
ernment. 

The  author's  argument  published   on  the  occasion   of  the 
Mandjur  affair,  under  date  of  March  2,  1904,  is  inserted  below : 

On  the  Mandjur  Affair. 

Before  entering  into  the  discussion  of  this  affair,  the  author  is  going 
to  refer  briefly  to  the  opinion  of  his  admired  friend,  Rev.  Dr.  Lawrence. 
He  says: 

"  Unfortunately  for  Russia,  the  Mandjur,  a  Russian  gunboat,  was 
lying  in  the  neutral  harbour  of  Shanghai  at  the  outbreak  of  hostilities. 
The  Japanese  naval  authorities  promptly  sent  the  cruiser  Akitsushima 
to  watch  the  mouth  of  the  Yang-tse,  off  Woosung.  Stationed  there,  she 
blocked  the  only  way  whereby  the  Mandjur  could  reach  the  open  sea 
and  the  Port  Arthur  Fleet.  The  position  was  certainly  a  trying  one 
for  the  Russian  commander.  China,  the  territorial  power,  exercised  its 
undoubted  right  as  a  neutral  and  ordered  him  to  leave  within  twenty- 
four  hours.  Full  in  his  path  lay  an  enemy  of  greatly  superior  force. 
If  he  departed,  he  went  to  certain  capture  or  destruction.  If  he  re- 
mained, he  broke  International  Law  by  defying  a  neutral  government. 
He  chose  the  latter  alternative.  The  Chinese  executive  was  too  weak 
to  risk  the  consequences  of  determined  action.  They  might  have  de- 
tained the  gunboat  for  the  rest  of  the  war,  or  fired  upon  her  if  she 
persistently  declined  to  move,  or  escorted  her  out  to  sea,  leaving  her 
to  take  the  chances  of  battle  or  escape  when  well  outside  the  terri- 
torial waters.  But  they  did  none  of  these  things.  Instead  they  parleyed. 
Japan,  on  the  other  hand,  might  have  given  notice  to  China  that  she 
would  no  longer  respect  the  territorial  waters  of  a  State  which  seemed 
powerless  to  defend  its  neutrality,  or  she  might  have  claimed  repara- 
tion for  the  indulgence  shown  to  her  opponent.  But  she  was  extremely 
anxious  not  to  drive  matters  to  extremities,  and  to  stand  well  with 
China  and  the  rest  of  the  world.  So  she,  too,  parleyed;  and  as  the 
result  of  a  sort  of  three-sided  negotiation  between  herself  and  China  on 
the  one  hand,  and  Russia  and  China  on  the  other,  the  gunboat  was  dis- 
mantled so  thoroughly  as  to  make  her  permanently  useless,  and  the 
Akitsushima  was  then  withdrawn  from  her  long  watch  at  the  mouth  of 
the  Yang-tse." 

It  is  regrettable  that  some  part  of  his  opinion  is  based  upon  a  false 
conception  of  the  facts.     He  says  that  the  Mandjur  anchored  at  Shang- 


422  NEUTRALITY.  [PART  IV. 

hai  before  the  outbreak  of  the  war,  and  that  Japan  despatched  the 
Akitsushima  to  the  port  after  the  war  had  begun  and  was  prepared  to 
seize  her  when  she  came  out.  But  this  is  a  misunderstanding  on  his 
part.  The  Akitsushima  had  been  there  at  anchor  before  the  war  broke 
out,  and  had  not  been  sent  there  with  any  special  purpose  of  seizing 
or  sinking  the  Mandjur.  Moreover,  though  his  observations  on  this 
affair  may  appear  quite  reasonable  from  a  legal  point  of  view,  it  is  to 
be  regretted  that  he  discusses  the  question  without  laying  any  special 
importance  upon  the  following  fact.  Now,  Shanghai  was  made  a  neu- 
tral port  at  the  time  of  the  Chino-Japanese  War.  Belligerent  ships 
could  not  enter  the  port.  Shanghai,  Woosung,  and  their  vicinity  were 
then  recognised  as  neutral  by  Japan,  as  well  as  by  foreign  countries. 
Such  being  her  history,  Shanghai  is  a  locality  where  warlike  opera- 
tions had  to  be  avoided.  As  the  Mandjur  lay  at  anchor  there  before 
the  war  broke  out,  she  was  in  no  position  to  be  sunk  by  force,  as 
argued  by  Dr.  Lawrence.  It  is  plain  enough  that  she  could  not  be 
bombarded  by  any  means,  judging  from  the  geographical  features  of 
the  port.  If  sunk  at  her  moorings  it  would  obstruct  much  of  the  navi- 
gation of  the  Yangtzekiang.  In  short,  the  Mandjur  affair  is  quite  dif- 
ferent in  its  circumstances  from  those  of  the  Ryeshitelny  case  at  Chefoo 
(which  case  justified  the  strong  measures  resorted  to,  as  explained  by 
the  Japanese  Government).  Dr.  Lawrence  did  not  know  about  these 
circumstances,  and  his  opinion  about  the  Mandjur  was  perhaps  similar 
to  that  of  the  Japanese  Government  relative  to  the  Ryeshitelny  affair. 
The  author's  observations  on  the  Mandjur  affair  at  the  time  of  its 
occurrence,  which  he  expressed  then  at  the  Japanese  Foreign  Office, 
were  as  follows: 

I.  The  Action  of  the  Mandjur. 
The  action  plainly  infringes  upon  the  right  of  the  neutrality  of 
China.  But  suppose  Russia  answered  that  the  Mandjur  was  at  Shang- 
hai from  the  peaceful  days  before  the  war,  for  the  purpose  of  guarding 
the  Russian  Consulate  and  Russian  subjects,  with  no  relation  at  all  to 
the  war,  and  that  consequently  she  could  remain  at  Shanghai  even  after 
the  war  broke  out,  what  should  Japan  say  to  this?  There  is  a  case 
somewhat  like  this  on  record.  In  the  Linois  affair,  which  occurred 
in  the  Franco-German  War  of  1870,  the  French  Government  justified 
itself  in  the  same  way.  But  it  was  grounded  upon  the  following  regu- 
lation contained  in  the  declaration  of  the  Japanese  Government  of  her 
neutrality.  "  Although  some  countries  have  been  permitted  to  have 
their  soldiers  stationed  on  Japanese  soil,  their  warships  at  anchor,  and 
their  naval  barracks  built  in  our  open  ports,  this  is  entirely  for  the 
purpose  of  their  guarding  the  merchants  of  their  own  countries  resident 


CHAP.  I.,  SECT.  I.]      THE   MANDJUR   IN   SHANGHAI.  423 

there  in  time  of  peace,  and  never  for  that  of  giving  them  conveniences 
for  taking  any  belligerent  operations  on  their  part.  Consequently  they 
are  forbidden  to  make  use  of  these  privileges  for  warlike  purposes 
beyond  what  are  permitted  in  time  of  peace."  That  the  Linois  remained 
at  Kanagawa  during  the  Franco-German  War  was  thus  justified  as 
a  right  legally  based  upon  the  Japanese  regulations  for  neutrality. 
But  the  circumstances  of  China  at  this  juncture  were  different.  She 
did  not  bind  herself  with  similar  regulations  of  neutrality.  On  the 
contrary,  she  clearly  prohibited  any  belligerent  ships  to  stay  more  than 
twenty-four  hours.  She  refused  to  let  the  Mandjur  stay  at  that  port 
under  the  pretext  of  guarding  the  consulate,  etc.  The  Mandjur  stayed 
there  in  spite  of  refusal,  and  thus  the  Russian  warship  was  infringing 
upon  Chinese  rights.  And  if  China  acquiesced  in  the  stay  of  the 
Mandjur  with  any  malicious  intention,  China  would  be  responsible  to 
Japan  on  account  of  her  neutrality.  But  she  seems  in  fact  to  have  had 
no  such  malicious  intention. 

II.  The  Action  of  China. 
Observed  from  the  droit  d'Asile  of  neutral  states,  some  scholars 
argue  that  neutral  states  may  give  the  right  of  asylum  to  bellig- 
erent warships  in  their  own  ports.  They  assert  that  neutral  states 
may  resist,  if  need  be,  the  violent  actions  taken  by  the  warships  of  one 
belligerent  towards  those  of  the  other.1  Now  the  case  of  the  Mandjur 
affair  was  that  of  seeking  refuge  in  a  Chinese  port  from  a  superior 
force  of  the  enemy.  The  right  of  asylum  may  be  theoretically  acknowl- 
edged to  be  extended  to  the  warships  belonging  to  one  belligerent  and 
staying  in  a  neutral  port  with  such  a  hope.  But  the  Chinese  regula- 
tions for  her  neutrality  do  not  recognise  a  long  sojourn  in  her  ports  in 
order  to  avoid  being  attacked  by  the  enemy.  Thus  it  is  plain  enough 
that  the  action  of  China  could  not  be  defended  upon  the  ground  of 
droit  d'Asile  of  neutral  states. 

The  Twenty-Four-Eour  Rules. 
There  are  various  kinds  of  twenty-four-hour  rules.  France  makes 
it  a  principle  not  to  place  any  limit  on  the  time  for  men-of-war  of  a 
belligerent  state  to  stay  in  the  enemy's  ports,  but  to  prohibit  their 
staying  over  twenty-four  hours  when  they  have  brought  captured  ves- 
sels with  them,  except  in  case   of  irresistible   force  or   for  some   other 

1  Davis  433 — Asylum  to  Armed  vessels — a  similar  right  of  asylum  exists  in  the  case  of 
public  and  private  armed  vessels,  and  to  merchant  ships  belonging  to  either  belligerent. 
They  may  seek  refuge  in  a  neutral  port  from  the  perils  of  the  sea  or  from  a  superior 
force  of  the  enemy.  The  protection  of  the  neutral  government  is  extended  to  them  so 
soon  as  they  come  within  its  territorial  waters,  and  it  may  resist,  by  force  if  need  be,  any 
hostile  attempts  that  are  directed  against  them  while  within  its  jurisdiction.  (The 
president  and  prize  VII.,  opin.  Gen.  p.  122.) 


424  NEUTRALITY.  [PART  IV. 

legitimate  cause.  Brazil  has  a  similar  rule,  the  only  difference  being 
the  exception  clause  made  clearer  by  the  addition  of  a  phrase  express- 
ing the  case  of  being  threatened  by  a  superior  enemy.  An  ordinary 
kind  of  twenty-four-hour  rules  prohibits  any  man-of-war  of  a  belligerent 
state  from  staying  over  twenty-four  hours.  China  has  adopted  these 
common  rules,  and  it  must  be  stated  to  have  been  her  duty  to  make  the 
Russian  gunboat  Mandjur  depart  when  twenty-four  hours  had  elapsed 
after  the  outbreak  of  the  Russo-Japanese  War.  But  China  allowed  the 
Russian  boat  to  stay  over  twenty-four  hours,  which  may  be  looked  upon 
as  an  infraction  of  the  laws  of  neutrality;  and  it  may  be  argued  to 
have  been  tenable  for  Japan  to  dispose  of  the  Russian  gunboat  as  she 
saw  fit  after  the  lapse  of  twenty-four  hours.  As  far  as  the  author  can 
see,  this  argument  is  not  quite  correct.  It  was  through  neither  neglect 
nor  a  malicious  intention  on  the  part  of  China  that  the  Russian  gun- 
boat stayed  at  Shanghai  over  twenty-four  hours.  On  the  contrary, 
China  did  not  fail  to  take  the  necessary  steps  in  demanding  the  Russian 
boat  to  depart  within  the  prescribed  time;  so  that  the  responsibility  of 
the  case  should  be  stated  to  have  been  not  on  China,  but  rather  on  the 
Russian  gunboat  herself,  although  it  was  an  impossibility  for  Japan  to 
call  Russia  to  account  during  the  war.  The  author  cannot,  therefore,, 
help  concluding  that  it  was  practically  impossible  during  the  war  to 
get  any  reasonable  solution  as  to  the  responsibility  for  the  remaining 
of  the  Mandjur. 

How  was  the  Mandjur  to  be  Disposed  off 
The  question  about  the  disposal  of  the  Mandjur  has  invited  several 
opinions;  but  the  decision  of  the  Chinese  Government  to  make  her  pro- 
long her  stay,  after  taking  off  her  arms  and  the  important  parts  of 
her  navigating  machinery,  was  the  result  of  a  careful  consideration, 
and  may  be  said,  if  looked  at  in  a  certain  light,  to  have  added  a  rea- 
sonable new  precedent  to  International  Law,  although  there  are  some 
who  attempt  to  blame  the  decision  from  a  political  sense.  The  author 
will  try  to  study  the  question  with  calmness  of  mind  from  a  theoretical 
as  well  as  a  practical  point  of  view. 

1.    Was  the  Mandjur  to  be  Convoyed  by  Chinese  Men-of-war  to  a 
Place  of  Safety? 

When  war  vessels  or  merchant  vessels  of  both  belligerent  states  hap- 
pen to  be  in  a  neutral  port  at  the  same  time,  the  neutral  State  has  a 
right  to  demand  not  to  have  any  acts  done  in  the  port  that  may  in- 
fringe upon  the  sovereignty  of  the  state;  and  may  detain  the  war 
vessels  of  either  belligerent  state  for  twenty-four  hours  after  the  de- 
parture therefrom  of  the  war  vessels  or  merchant  vessels  of  the  other 


CHAP.  I.,  SECT.  I.]      THE   MANDJUR   IN   SHANGHAI.  425 

belligerent  state.  Some  scholars  go  a  step  further  and  argue  that  war 
vessels  of  a  neutral  state  (Chinese  war  vessels,  for  example)  may  con- 
voy a  war  vessel  or  merchant  vessel  (the  Afandjur,  for  example)  of 
either  belligerent  state  in  a  neutral  port  (Shanghai,  for  example)  to  a 
place  of  safety  beyond  the  neutral  waters. 

(Dana's  note  on  Wheaton,  208. — Belligerent  acts  in  Neutral  Waters. — 
If  a  cruiser  is  within  the  neutral  waters,  though  not  in  port,  the  neutral 
may  convoy  the  belligerent  in  port  beyond  its  waters,  and  insist  that  the 
other  shall  keep  within  the  waters  for  a  reasonable  time  thereafter. 
See  also  Halleck's  International  Law,  517-523;  Kent's  Comm.,  I.,  118- 
125;  Heffter,  Sect.  146-159;  Hauteheuille,  6  tit.  1.  Ch.  Artolan,  Regl. 
I.,  II.,  ch.  8.    Manning,  387.) 

If,  according  to  this  argument,  the  Mandjur  had  been  convoyed  to 
a  safe  place  beyond  the  neutral  waters,  and  enabled  as  a  consequence 
to  unite  with  the  Russian  Squadron  at  Port  Arthur  or  Tailenwan,  it 
would  have  been  an  act  of  extreme  partiality;  although  it  cannot  be 
disputed  that  such  an  act  can  be  fully  supported  by  the  above  theory, 
notwithstanding  the  practical  partiality  of  its  ultimate  results.  How- 
ever, such  a  course  was  not  adopted  in  the  actual  disposal  of  the 
Mandjur,  which,  the  author  is  inclined  to  say,  was  a  step  well  suited 
to  the  real  circumstances  at  that  time. 

2.    Was  the  Mandjur  to  be  Compelled  to  Vacate  the  Port  and  then  to 

be  Attacked? 

The  law  of  capture  makes  it  a  principle  for  a  belligerent  war  vessel 
not  to  attack  vessels  of  the  enemy  outside  a  neutral  port;  in  other 
words,  the  law  prohibits  hovering  for  the  purpose  of  capture. 

(The  Anna  5,  c.  Rob.  385  e. — opinion  of  Lord  Stowell;  Hovering  bel- 
ligerents, see  Walker,  p.  175,  Lord  Lyons  to  Mr.  Seward,  May  4,  1863, 
U.  S.  Dipl.  Corresp.,  1863,  p.  523. 

Wheaton,  with  notes  by  Dana,  Sect.  428 — Capture,  Hovering  on  the 
coasts.) 

However,  this  principle  does  not  extend  to  men-of-war;  and,  since 
a  war  vessel  cannot  be  made  an  object  of  capture,  it  cannot  be  said 
to  mean  to  prohibit  a  belligerent  war  vessel  from  waylaying  and  attack- 
ing an  enemy's  war  vessel  outside  of  a  neutral  port  on  her  coming 
out  of  it.  But  here  the  legislative  spirit  that  prohibits*  a  hovering 
capture  requires  a  careful  consideration.  Capture  of  merchantmen  is 
prohibited  inside  of  a  neutral  port;  but  if  it  is  permitted  outside  the 
port,  the  prohibition  inside  the  port  not  only  loses  its  practical  effect, 
but  the  port  will  afford  a  good  place  for  waylaying  and  attacking; 
hence  the  prohibition  of  hovering  capture.  This  legislative  spirit  should 
be  extended  to  the  case  of  war  vessels ;  if  otherwise,  the  twenty-four-hour 


426  NEUTRALITY.  [PART  IV. 

rules  will  practically  come  to  lose  their  intended  effect,  for  belligerent 
war  vessels,  having  left  a  neutral  port  twenty-four  hours  previous,  can 
hover  just  outside  the  neutral  waters  and  attack  an  enemy's  war  ves- 
sels which  afterwards  come  out  of  the  port.  It  would  not,  therefore, 
have  been  fair  to  take  such  a  step  as  to  waylay  and  attack  the  Russian 
gunboat  after  causing  her  to  go  out  of  the  neutral  port  of  Shanghai. 

3.    Was  it  Impossible  to  Make  the  Mandjur  Surrender? 

This  is  not  a  question  to  be  discussed  from  the  juridical  theory, 
although  it  might  have  been  a  well-adapted  practical  solution  of  the 
case,  the  Russian  gunboat  having  then  actually  been  in  a  dilemma. 
Such  a  question  is  not  limited  to  the  Mandjur  at  Shanghai,  but  was 
likely  to  arise  at  Port  Arthur  or  Vladivostock ;  and  it  may  not  be  amiss 
to  say  a  word  on  this  point,  based  on  what  the  author  has  heard.  Ac- 
cording to  Russia's  naval  law,  when  a  Russian  warship  meets  with  an 
enemy  so  superior  in.  force  that  her  resistance  is  hopeless,  her  com- 
mander is  authorised  to  surrender  to  the  enemy  on  a  unanimous  accord 
of  her  whole  crew,  provided  he  once  takes  an  attitude  of  resistance,  by 
opening  fire  on  the  enemy.  It  might  therefore  have  been  well,  accord- 
ing to  the  Russian  law,  if  advice  to  surrender  had  been  given  to  the 
Mandjur ;  and  it  may  still  be  so  with  regard  to  future  cases  in  connec- 
tion with  the  Russian  warships  at  Port  Arthur  or  Vladivostock.  It 
should,  however,  be  noted  that  advice  to  surrender  not  being,  of  course, 
a  demand  of  right,  it  must  be  said  to  be  rather  a  worthless  opinion,  if 
estimated  in  the  light  of  mere  legal  argument. 

4.     Was  it  Admissible  for  Japan  to  Sink  the  Mandjur  by  Fire  at 

Shanghai? 

(1)     Study  of  Precedents. 
We  have  several  precedents  of  sinking  an  enemy's  war   vessels  by 
fire  in  neutral  ports,  a  few  conspicuous  ones  being  as  follows: 

(a)  The  Essex  case,  during  the  War  of  1812  between  Great  Britain 
and  the  United  States. 

(b)  The  Levant  case. 

(c)  The  General  Armstrong  case. 

Dana's  note  on  Wheftton,  208.— "  During  the  War  of  1812  between 
the  United  States  and  Great  Britain,  the  United  States  frigate  Essex 
was  attacked  and,  while  at  anchor,  compelled  to  surrender;  she  was 
dismasted  in  Valparaiso  by  the  British  frigate  Phoebe  and  sloop-of-war 
Cherub.  The  sloop-of-war  Levant,  a  recent  prize  of  the  United  States 
frigate  Constitution,  was  chased  into  Port  Praya,  and  captured  while 
at  anchor  there  by  vessels  from  the  British  Fleet.     The  United  States 


CHAP.  I.,  SECT.  I.]      THE   MANDJUR   IN   SHANGHAI.  427 

vessel  General  Armstrong,  then  lying  in  the  harbour  of  Fayal,  was 
destroyed  by  vessels  from  the  British  Fleet." 

On  examining  these  precedents  it  is  found  that  all  of  their  actions 
carried  proper  reasons,  and  that  the  attack  of  the  enemy's  war  vessels 
were  not  carried  out  arbitrarily.  The  arbitration  of  the  General  Arm- 
strong case  was  as  follows: 

If  a  belligerent  war  vessel  in  a  neutral  port  does  not  apply  to  the 
neutral  State,  but  attempts  to  herself  offer  a  resistance  to  the  other 
belligerent,  the  latter  may  sink  her  by  firing  thereon;  but  it  is  an 
outrage  unwarrantable  by  legal  theory  to  sink  an  enemy's  war  vessel 
without  resistance  in  a  neutral  port  after  the  neutral  State  has  come 
to  mediate  between  the  belligerents  on  the  application  of  the  other. 

(2)     Study  of  the  Position  of  Shanghai. 

The  interests  of  nearly  all  the  Powers  are  represented  in  Shanghai, 
and  Great  Britain,  especially,  insists  on  having  great  interests  in  that 
port.  At  the  time  of  the  Chino-Japanese  war,  Great  Britain  insisted 
on  having  Shanghai  placed  outside  the  circle  of  warlike  operations,  and 
sent  a  letter  to  Mr.  Mutsu,  Japanese  Minister  for  Foreign  Affairs, 
under  the  signature  of  the  R.  L.  Budget,  British  Charge  d'Affaires,  to 
the  effect  that  if  the  communication  with  Shanghai  was  interfered  with 
on  account  of  the  outbreak  of  hostilities  between  Japan  and  China, 
the  loss  and  injury  to  be  sustained  by  Great  Britain  would  be  very 
heavy,  as  she  was  most  deeply  interested  in  that  port,  it  being  the 
centre  of  her  trade  in  the  Far  East.  Japan  was  therefore  requested  to 
agree  beforehand  not  to  make  any  warlike  operations  against  Shanghai 
and  its  approach.  To  this  request  agreement  was  given  by  the  Japa- 
nese Foreign  Minister,  the  following  instructions  having  in  the  mean- 
time been  given  out  as  a  result  of  consultation  between  the  Foreign 
Minister  and  the  Minister  of  the  Navy: 

"  Tokyo,  25th  July,  1894. 
"Sir: 

"  With  due   respect  to   international  morality,   and  desiring  not  to 

give  harm  to  the  trade  of  our  treaty  Powers,  we  have  decided  not  to 

make  warlike  operations  against  Shanghai  and  its  approach. 

"  By  Order, 

"  Chief  of  the  General  Staff." 

"  To  the  Commander-in-Chief  of  the  Combined  Squadron." 

The  author  does  not  think  it  juridically  proper  to  look  at  Shanghai 
as  a  neutral  place  when  China  herself  was  an  enemy;  but  circum- 
stances compelled  Japan  to  recognise  the  port  as  a  neutral  place  dur- 
ing the  Chino-Japanese  War.    It  cannot  be  helped  in  International  Law 


428  NEUTRALITY.  [PART  IV. 


that  such  a  fact  can  exist  as  a  precedent,  although  it  does  not  conform 
with  juridical  theory.  Now,  as  may  be  seen  by  the  above  narration, 
a  warlike  operation  was  restrained  at  Shanghai  even  when  China  her- 
self was  an  enemy.  It  may  thus  be  plain,  without  further  explanation, 
how  much  more  difficult  circumstances  would  have  been  in  making 
warlike  operations  at  Shanghai  when  China  was  a  neutral  State.  Con- 
sequently the  stay  of  the  Russian  gunboat  at  Shanghai  should  have 
been  objected  to  by  Great  Britain  (there  being  more  reasons  to  demand 
her  departure  than  that  it  was  an  ordinary  neutral  port  of  China), 
while  it  was  plain  at  the  same  time  that  Japanese  warships  could  not 
bombard  her  in  that  port. 

The  above  is  an  explanation  of  the  special  circumstances  existing 
historically  on  the  position  of  Shanghai,  which  shows  the  difficulty  of 
solving  questions  of  this  kind  simply  by  theory. 

Besides,  the  place  where  the  Mandjur  anchored  was  the  quay  in 
front  of  the  premises  of  the  Nippon  Yusen  Kaisha,  where  ships  and 
cargoes  of  all  the  countries  are  always  assembled.  How  serious  an 
effect  there  would  have  been  if  fire  had  been  opened  and  a  warship 
sunk  at  such  a  landing,  the  reader  may  easily  imagine  if  we  suppose 
a  case  of  sinking  a  steamer  by  fire  at  Reiganjima,  Tokyo,  great  as  is 
the  difference  between  the  circumstances  of  the  two  places.  It  is  there- 
fore most  evident  that  the  bombardment  would  have  been  a  step  most 
inadmissible  from  a  practical  point  of  view. 

Those  in  charge  of  business  have  often  to  pass  through  various  com- 
plications before  they  can  decide  a  question;  so  much  so,  that  he  should 
be  called  inconsiderate,  who  attempts  to  offer  a  criticism  of  a  result, 
not  knowing  the  conditions  by  which  it  was  reached. 

(3)     The  Disarmament  of  the  Mandjur. 

What  was  then  to  be  done  with  the  Mandjur ?  It  was  not  admis- 
sible to  convoy  her  out  and  ultimately  augment  the  strength  of  the 
Russian  Squadron.  It  was  unfair  to  compel  her  to  come  out,  in  order 
to  attack  her  outside  the  port.  To  cause  her  to  surrender  was  an- 
other course;  but  if  she  refused  to  come  to  terms,  what  then?  As 
for  bombarding  her,  at  present  difficulty  is  felt  in  finding  appropriate 
juridical  reasons  for  such  a  step,  not  to  speak  of  the  difficult  cir- 
cumstances in  relation  to  the  position  of  the  port.  Thus,  there  not 
being  any  specially  good  plan,  it  should  not  be  called  unlawful,  but  a 
proper  punishment,  and  a  good  precedent  opened  for  application  in  such 
future  cases,  to  make  the  gunboat  stay  at  Shanghai  during  the  con- 
tinuation of  the  Russo-Japanese  War  by  taking  off  her  guns  as  well 
as  the  important  parts  of  her  navigating  machinery. 

It  may  be  added   here,   in  order  to  prevent  any  misunderstanding, 


CHAP.  I.,  SECT.  I.]      RUSSIAN   WARSHIPS   IN    SHANGHAI.  429 

that  if  the  Russian  gunboat  had  broken  her  promise  to  take  off  her 
guns  and  the  important  parts  of  her  navigating  machinery,  the  ques- 
tion would  have  assumed  a  new  aspect,  giving  to  both  Japan  and 
China  a  right  to  take  necessary  steps  in  adjusting  the  matter  relative 
to  the  Russian  boat. 


II.     The  Askold  and  the  Grozovoi  at  Shanghai. 

Two  Russian  warships,  the  Askold  and  the  Grozovoi,  escaped 
to  Shanghai,  after  having  been  defeated  in  the  naval  engage- 
ment of  August  10th-,  1904. 

The  Askold  entered  the  Cosmopolitan  Dock  there  on  Aug. 
14th  at  3  p.m.,  and  the  Grozovoi,  at  first  tied  to  the  seventh 
wharf  of  the  harbour,  later  steamed  up  stream,  and  cast  anchor 
by  the  quay  of  the  East  China  Railway  at  6.35  p.m.  the  same 
day. 

Thereupon  the  following  principles  were  established  by  the 
Japanese  Government  in  regard  to  the  treatment  of  those  fugi- 
tive Russian  men-of-war: 

Shanghai  possesses  peculiar  circumstances,  by  virtue  of  which  it  calls 
for  a  treatment  quite  different  from  the  rest  of  the  Chinese  territory. 

1.  Shanghai,  though  a  part  of  the  Chinese  territory,  may  be  con- 
sidered practically  as  a  settlement  common  to  all  the  Powers. 

2.  Neutrality  at  Shanghai  may  be  secured,  if  necessary,  by  an  inter- 
national negotiation,  without  solely  depending  on  Chinese  efficiency. 

As  a  result  of  a  proper  consideration  of  these  peculiar  circumstances, 
the  following  notification  was  addressed  to  Chinese   authorities: 

The  period  of  24  hours  granted  having  already  expired,  the  Russian 
warships  should  be  ordered  to  leave  the  port,  and  if  they  decline  to 
depart,  they  should  be  disarmed  and  detained  there,  without  any  repair, 
until  the  end  of  the  war.  If  the  Chinese  Government  find  it  impossible 
to  execute  the  enforcement  of  these  neutrality  regulations,  the  Japa- 
nese Government  reserves  the  right  to  take  such  measures  as  it  may 
deem  proper,  leaving  all  the  consequences  to  be  borne  by  China. 

Notwithstanding  Japan's  repeated  pressure  on  Chinese  authorities, 
the  Russian  warships  would  consent  neither  to  depart  within  the  allotted 
period,  nor  to  be  disarmed.  Thereupon  the  Japanese  Government  sent 
to  the  Powers  the  notification  inserted  below  as  containing  the  full 
account  of  the  proceedings:  1 

1  Foreign  Relations,  1904,  pp.  426-427. 


430  NEUTRALITY.  [PART  IV. 


Sent  Aug.  25th,  1904. 

"  The  Russian  cruiser  Askold  and  destroyer  Grozovoi,  escaping  from 
Port  Arthur,  entered  Shanghai  on  the  13th  inst.,  having  arrived  at 
Woosung  on  the  previous  day.  The  24  hours  prescribed  by  China's 
Neutrality  Regulations  passed,  but  the  Russian  ships  showed  no  sign 
of  taking  their  departure.  Consequently  the  Japanese  Consul-General 
at  Shanghai,  acting  under  instructions  of  the  Imperial  Government, 
addressed  a  communication  to  the  Taotai  of  Shanghai,  pointing  out 
that  as  the  two  vessels  had  already  remained  in  Shanghai  for  more 
than  24  hours,  they  should  be  called  upon  to  take  their  departure  at 
once,  and  in  case  of  their  refusal,  they  should  be  disarmed  and  detained 
at  Shanghai  until  the  end  of  the  war,  without  being  permitted  to  make 
repairs. 

"  The  Consul-General  added  that  the  Imperial  Government  reserved 
the  right,  if  neither  of  the  above  alternatives  was  enforced,  to  take 
such  action  as  they  might  deem  proper,  and  that  the  responsibility  for 
the  consequences  would  rest  with  China. 

"The  Taotai  acceded  to  the  demand,  but  he  proved  quite  powerless 
before  the  Russian  Consul,  who,  notwithstanding  the  former's  repeated 
pressure,  categorically  refused  to  effect  either  of  the  two  alternatives, 
and  persistently  adhered  to  his  equivocal  declaration  that  the  vessels 
would  be  prepared  to  leave  the  port  only  upon  completion  of  the  repairs 
which  were  under  contemplation. 

"It  then  transpired  that  those  repairs  were  of  a  very  extensive 
nature,  almost  tantamount  to  the  restoration  of  fighting  power  to  the 
vessels,  requiring,  in  case  of  the  Askold,  four  weeks  for  their  comple- 
tion. To  permit  such  repairs  would  be  evidently  incompatible  with 
the  neutral  obligation  of  China.  Accordingly  the  Japanese  Consul- 
General  at  Shanghai  was  again  instructed  to  call  the  most  serious 
attention  of  the  Taotai  to  the  matter  and  to  demand  that  the  repairs 
to  be  permitted  the  Russian  warships  should  be  of  such  nature  as  were 
required  to  make  them  seaworthy,  and  that  the  period  therefor  should 
be  limited  to  two  days.  He  had  further  to  warn  the  Chinese  authori- 
ties that  in  case  of  China's  acquiescence  in  the  restoration  of  the  fighting 
power  of  the  Russian  ships  by  allowing  the  repairs  as  planned  by  them, 
Japan  would  be  compelled  to  take  such  measures  as  might  seem  proper. 
It  was  only  after  a  great  deal  of  hesitation  and  repeated  pressure  of 
the  Japanese  Consul-General  that  the  Taotai  at  last  notified  the  Rus- 
sian Consul,  on  the  19th  inst.,  in  the  sense  Japan  desired.  But  this 
again  met  peremptory  refusal  on  the  part  of  the  latter,  who  in  reply 
declined  on  behalf  of  the  two  vessels  to  submit  to  any  limitations  or 
conditions.      In  the  meantime  the  Imperial   Government,   on  the    19th 


€HAP.  I.,  SECT.  I.]      RUSSIAN   WARSHIPS   IN   SHANGHAI.  431 

inst.,  instructed  their  Minister  at  Peking  to  formally  notify  the  Chinese 
Government  to  the  following  effect: 

"  •  That  the  Russian  warships  should  be  called  upon  to  take  imme- 
diate departure  from  Shanghai.  If  they  are  really  unable  to  so  leave  on 
account  of  their  damages,  two  days'  repairs  should  be  permitted  to  them 
to  make  them  seaworthy,  and  no  more.  In  case,  however,  they  are  un- 
willing to  leave  Shanghai,  they  should  be  disarmed,  without  making  any 
repairs,  and  detained  in  the  port  until  the  conclusion  of  the  present  war. 

" '  In  the  event  of  China's  failure  to  enforce  either  of  the  three 
alternatives  above  set  forth,  the  Japanese  Government  would  take  such 
measures  of  self-protection  as  they  may  deem  necessary,  and  resultant 
responsibilities  for  the  consequence  will  rest  solely  with  China.' " 

In  view,  however,  of  the  difficult  position  under  which  the  Chinese 
Government  were  labouring,  the  Japanese  Government  consented  to  fix 
the  21st  of  August  at  noon  as  the  time  upon  which  the  two  days' 
period  above  alluded  to  should  commence,  and  the  Chinese  Government 
assured  the  Japanese  Minister  that  it  would  at  once  take  the  neces- 
sary steps  to  inform  the  Russian  Minister  in  China  and  the  Taotai  of 
Shanghai  in  the  sense  desired  by  Japan.  It  was  with  great  surprise 
that  the  Japanese  Government  learned  through  their  Minister  in  Peking 
that,  notwithstanding  the  assurance  given,  as  above  stated,  the  Chinese 
Government  granted,  on  the  23rd  inst.,  further  extension  of  time  for 
the  completion  of  repairs  and  departure  of  the  ships,  until  noon  of  the 
28th  inst.  Against  such  extension  the  Japanese  Government  protested 
and  declared  that  they  would  be  compelled  to  have  recourse  to  such 
action  as  they  considered  proper,  and  that  the  responsibility  for  the 
consequences  would  rest  entirely  with  China. 

"  The  foregoing  are  the  more  important  facts  of  the  case,  and  beyond 
question  they  constitute  a  grave  infraction  of  the  neutrality  of  China 
to  the  serious  prejudice  to  the  belligerent  rights  of  Japan. 

"  Having  in  view,  however,  the  special  interests  of  the  Powers  in  the 
port  of  Shanghai,  the  Imperial  Government  had  exercised,  as  they  did 
in  the  case  of  the  Mandjur,  a  degree  of  forbearance  and  restraint. 
They  gave  sufficient  proof  of  their  earnest  desire  not  to  disturb  the 
orderly  state  of  affairs  at  that  place.  But  it  is  not  to  be  expected 
that  the  Imperial  Government  would  consent  to  an  indefinite  continua- 
tion of  a  condition  of  things  which  constituted  a  grave  menace  to  their 
warlike  operations,  as  well  as  to  their  commerce. 

"  But  having  regard  to  the  interests  of  the  Powers  involved  in  the 
maintenance  of  the  orderly  state  of  things  in  the  port  of  Shanghai,  the 
Imperial  Government  thought  it  right  to  bring  the  actual  state  of 
things  to  their  attention  before  the  exigencies  of  the  situation  compelled 
them  to  take  final  action." 


432  NEUTRALITY.  [PART  IV. 

On  the  26th  of  August,  1904,  the  Japanese  Government, 
deeming  it  unjustifiable  that  the  Chinese  Government  should 
defy  the  stipulations  of  International  Law  and  without  con- 
sulting them,  by  prolonging  the  period  allowed  to  the  Bus- 
sian  warships  so  that  they  could  be  repaired,  demanded  of  the 
Chinese  Government  the  fulfilment  of  the  following  articles, 
with  the  assurance  that  Japan  reserved  the  right  of  taking  such 
measures  as  might  seem  proper  to  them  for  self-defence: 

1.  The  disarmament  shall  be  set  about  without  the  slight- 
est delay. 

2.  Arms  and  ammunition  and  essential  portions  of  the 
engines  shall  be  landed  and  taken  in  custody  by  Chinese  au- 
thorities. 

3.  Eussian  flags,  if  any,  shall  be  hauled  down. 

4.  No  repairs  shall  be  permitted,  as  it  would  tend  to  in- 
crease the  fighting  capacity. 

5.  The  disarmed  warships  shall  be  put  in  custody  of  Chi- 
nese authorities,  and  under  no  circumstances  suffered  to  leave 
Shanghai. 

6.  As  the  repatriation  of  the  crew  tends  to  increase  the 
Russian  fighting  capacity,  as  was  well  shown  by  the  cases  of 
Variag  and  the  Mandjur,  whose  crews  are  reported  to  have 
retaken  arms,  the  crews  of  the  Askold  and  the  Grozovoi  shall 
be  ordered  to  leave  their  vessels  and  be  interned  by  Chinese 
authorities  until  the  end  of  the  present  war. 

It  was  only  after  such  a  determined  representation  that  the 
disarmament  of  the  two  men-of-war  was  set  about  in  the  man- 
ner shown  in  the  documents  annexed: 

Ammunition,  etc.,  Removed  from  the  Russian  Cruiser  Askold. 
2  boxes  containing  seven  47  mm.  breech  blocks. 
2  boxes  containing  ten  75  mm.  " 

2  boxes  containing  ten  6-inch  "  " 

3  boxes  of  12-inch  torpedo  heads. 
14  boxes  of  15-inch         "  " 

1  box  containing*  charge  for  torpedo  tube,  and  5  torpedo  directors,  1 

box  torpedo  caps. 

2  boxes  containing  two  rear  doors  of  above  water  torpedo  tubes. 


CHAP.  I.,  SECT.  I.]      RUSSIAN   WARSHIPS   IN   SHANGHAI.  433 

1  box  containing  two  rear  doors  of  submerged  water  torpedo  tubes. 
5  boxes  containing  ten  75  mm.  gun  sights. 

2  boxes  containing  ten  6-inch  gun  sights  and  seven  47  mm.  gun  sights. 
1  box  containing  5  torpedo  directors. 

1  box  proxsiline  electric  hand  charges. 
107  boxes  rifle  ammunition. 
25  boxes  Maxim  ammunition. 

(Signed)     Wm.  Carlson, 

Harbour  Master, 
Harbour  Master's  Office, 

{Shanghai,   31st  August,    1904. 

Ammunition,  Parts  of  Machinery,  etc.,  Removed  from  Russian  Torpedo- 
boat  Destroyer  Grozovoi. 

Torpedo  Detonators:    4  brass  tubes. 

4  boxes  torpedo  charges.     22-200  grs.     1  box  2  short. 

5  boxes  torpedo  charges.     47-95  grs.     1  box  1  short. 
1  box  containing  four  torpedo  caps. 

1  box  containing  8  small  pieces  gun-cotton. 
22  small  tins  calcium  lights. 

2  rear  doors  of  torpedo  tubes. 

1  box  large  brass  rocket  tubes. 

2  tins  of  rockets. 

1  bundle  of  ten  rockets. 

2  tins  white  flares :    1   open. 

7  boxes  rifle  ammunition:    2  open:    1   with   13   packets    (130  rounds) 
short. 
20  rifles  and  bayonets:   1  cleaning-rod  short. 

1  box  containing  6  breech  blocks — one  75  mm.  and  five  47  mm.,  also 

6  gun  sights  and  6  spare  back  sights. 

2  boxes  each  containing  1   torpedo  director. 
Shells : 

75  mm. 


47  mm. 


97  steel 

68  iron 

165 

95  boxes 

steel 

43  boxes 

iron 

5  boxes 

saluting 

charges 

143  3   boxes 


434  NEUTRALITY.  [PART  IV. 

Machinery:  From  Each  Engine:  Forward  and  After. 
One  length  of  main  steam  pipe. 
High  pressure  piston  valve. 
High  pressure  piston  valve  spindle. 
High  pressure  piston  valve  spindle  connecting  rod. 
High  pressure  piston  valve  casing  covers. 
Low  pressure  piston  valve  casing  covers. 

Also: 
One  length  of  substitute  steam  pipe,  common  to   both  engines. 

(Signed)     Wm.  Cablson, 
Harbour  Master. 

Concerning  the  crew,  the  Imperial  Government  required  as 
contained  in  the  following: 

In  view  of  the  crews  of  the  Variag  and  the  Mandjur  appar- 
ently retaking  arms  in  spite  of  parole,  the  repatriation  of  the 
crew  cannot  be  consented  to,  for  it  promotes  in  fact  the  Eus- 
sian fighting  capacity.  So  Japan's  determination  was  to  have 
all  crews  of  fugitive  war  vessels  disarmed  at  neutral  ports  in- 
terned within  the  respective  neutral  territories  until  the  end 
of  the  present  war,  and  we  had  hoped  that  the  Chinese  Gov- 
ernment also  would  reject  the  Eussian  proposal,  now  that  the 
British  and  German  Government  had  acted  in  accordance  with 
Japan's  desire. 

Subsequently,  the  Chinese  Tao-tai  sent  in  a  proposal  to  in- 
tern the  Eussian  crews  on  board  the  disarmed  vessels,  surveilled 
by  Chinese  men-of-war  stationed  by  them,  to  which  the  Japa- 
nese Government  gave  a  positive  reply. 

Later  on  two  Eussian  officers  applied  for  repatriation.  The 
Japanese  Government,  however,  replied  in  the  negative. 

Afterwards  there  was  found  the  following  article  concerning 
the  commander  of  the  AsTcold: 

The  Shanghai  correspondent  of  the  Jiji,  wiring  under  date  of  the 
2nd  inst.,  states  that  Rear-Admiral  Reitzenstein,  of  the  Russina  cruiser 
Askold,  who  is  now  at  Shanghai  under  the  charge  of  the  Chinese 
authorities,  has  applied  to  the  latter,  through  the  Russian  Consul,  for 
permission  to  return  home  on  account  of  illness.  The  application  was, 
however,  rejected,  on  the  ground  that  the  Russian  officer  was  present 


CHAP.  I.,  SECT.  I.]      RUSSIAN   WARSHIPS   IN   SHANGHAI.  435 


at  a  dinner  given  by  the  Italian  Consul  a  few  days  ago  at  Shanghai 
and  was  then  in  good  health. 

III.  The  Bodri  and  the  Russian  Transports  Belonging  to 
the  Baltic  Fleet. 

At  the  end  of  May,  1905,  the  Eussian  colliers  and  other 
vessels  on  special  services,  having  separated  from  the  Baltic 
Fleet,  entered  Woosung.     They  were  as  follows: 

The  Korea,  the  Meteor,  and  the  Svir,  special  service  boats. 

The  Kuronia,  the  Livonia,  transports.    , 

The  Vladimir,  the  Yaroslav,  the  Veroneji,  belonging  to 
the  Volunteer  Fleet. 

The  following  column  appeared  in  the  Shanghai  paper  con- 
cerning the  above-named  vessels : 

A  representative  of  the  Shanghai  Daily  Press  proceeded  to  Woosung 
on  the  26th  ult.  and  had  a  look  at  the  Russian  colliers.  They  were 
anchored  some  little  distance  beyond  the  red  buoy,  and  looked  very 
clean  and  smart,  with  the  exception  of  the  Yaroslav,  a  vessel  which 
carries  the  senior  Russian  officer  on  board.  She  is  painted  white  but 
looks  dirty  and  in  need  of  an  overhaul.  On  her  decks  could  be  seen 
several  loading  pontoons  and  she  was  crowded  with  men,  as  indeed 
were  all  of  them.  None  of  the  vessels  flew  any  flags.  The  other  ves- 
sels, viz.,  the  Vladimir,  Livonia,  Meteor,  Koronia,  and  Silvonia,  the  last 
named  being  ordinary  transports  and  the  former,  vessels  of  the  Volun- 
teer Fleet,  were  particularly  clean,  and  the  crowd  of  hands  on  board, 
who  lined  the  sides  of  the  ships  at  the  approach  of  the  launch,  sug- 
gested the  presence  of  a  large  number  of  naval  reserve  men,  although 
the  majority  of  them  on  some  vessels  appeared  to  be  Germans,  and 
on  others,  Frenchmen.  The  two  Chinese  cruisers,  the  Haichi  and 
Haichee  were  the  only  other  vessels  in  port,  and  a  glance  at  them  was 
sufficient  to  show  that  intense  anxiety  prevailed  on  board.  At  4.30 
p.m.  two  Chinese  officers,  looking  very  smart  in  their  neat  uniforms, 
entered  a  pinnace  and  were  conveyed  to  the  Yaroslav,  where  the  com- 
manding officer  met  them  at  the  gangway  and  ceremonial  salutes  were 
exchanged.  Disappearing  on  board,  no  sign  of  them  was  seen  for  about 
an  hour,  when  they  hurriedly  left  the  transport  and  returned  to  their 
own  vessel,  as  though  in  very  perturbed  frames  of  mind.  Signals  were 
then  passed  from  the  Chinese  cruisers  to  the  fort.  After  a  brief  spell 
an  answering  signal  was  given,  and  it  was  seen  that  the  Chinese 
cruisers  were  cleared   for   action. 


436  NEUTRALITY.  [PART  IV. 

No  notice  was  taken  of  the  launch,  and  if  such  had  been  the  in- 
tention of  those  on  board,  anything  could  have  been  conveyed  to  the 
transports.  The  Russian  vessels  were  fairly  deep  in  the  water  but 
an  expert  gave  the  opinion  that  many  hundred  tons  more  could  be 
carried  by  each  vessel. 

On  the  27th  of  May,  1905,  Mr.  Odagiri,  Japanese  Consul- 
General  at  Shanghai,  requested  the  Chinese  Government  to  take 
proper  measures.1     He  said: 

"As  the  Russian  colliers  and  other  vessel  on  special  service,  be- 
longing to  the  Baltic  Fleet,  are  to  be  deemed  as  the  part  of  the  said 
fleet,  they  must  leave  within  24  hours  or  must  be  disarmed,  according 
to  Art.  V.  of  the  Chinese  Neutrality  Regulation." 

After  a  few  days  Mr.  Odagiri  received  the  following  com- 
munication from  the  Shanghai  Taotai : 

On  the  evening  of  June  2,  the  Russian  Consul  at  Shanghai  con- 
sented to  the  detention  by  China  of  the  Russian  vessels  at  Woosung, 
which  should  be  treated  as  transports.  The  Chinese  naval  authorities, 
therefore,  in  consultation  with  the  Chief  of  the  Harbour  Office,  decided 
to  detain  two  of  the  Russian  vessels  inside  the  bar  at  Woosung,  and 
the  rest  in  the  port  of  Shanghai.  After  their  removal  to  the  appointed 
anchorages,  the  machinery  will  be  dismantled,  and  a  written  assurance 
be  obtained  from  the  Russian  Consul  to  the  effect  that  these  vessels 
shall  neither  participate  in  warlike  operations  nor  freely  leave 
Shanghai  during  the  war. 

On  the  4th  of  June  the  Bodri  entered  Shanghai  harbour, 
and  on  the  12th  of  June  the  Korea  entered  the  Cosmopolitan 
Dock,  the  Meteor  the  International  Dock,  while  the  Kuronia 
and  Livonia  anchored  by  the  Chau-shan-kiuk  pier. 

As  to  the  crews  of  these  vessels,  they  were  interned  in  the 
respective  vessels. 

After  the  restoration  of  peace,  the  Mandjur,  Grozovoi, 
Askold,  and  Svir  returned  to  Vladivostock  the  middle  of  Nov. ; 
the  Meteor  to  Odessa  on  the  27th  of  Oct.,  and  the  Livonia  to 
Libau  on  2nd  Nov. 

1  Japan  Times,  June  10,  1905. 


CHAP.  I.,  SECT.  II.]      THE    RYESHITELNI   IN    CHEFOO.  437 

Sect  II.     Russian  Warships  in  Chefoo. 

I.     The  Ryeshitelni  Incident. 

The  Official  Report.1 
"  On  the  night  of  August  10,  while  cruising  in  search  of  the  dispersed 
Russian  Squadron,  our  destroyers  Asashiwo  and  Kasumi  sighted  one 
apparently  Russian  destroyer  steaming  at  full  speed  westward  and 
immediately  pursued  her,  but  she  disappeared  in  the  darkness.  Con- 
tinuing the  search  the  next  morning,  they  found  that  the  enemy's  de- 
stroyer had  fled  to  Chefoo.  They  remained  outside  territorial  water  till 
night,  vainly  expecting  her  coming  out.  Then  they  entered  Chefoo  and 
found  that  the  enemy's  destroyer  was  the  Ryeshitelni,  and  that  there 
was  no  sign  of  her  being  disarmed.  Accordingly  Lieutenant  Terashima 
was  sent  on  board  and  offered  the  Russian  Commander  the  alternative, 
to  either  leave  port  before  dawn  or  to  surrender.  The  latter  accepted 
neither,  and  while  discussing  proceedings,  ordered  his  men  to  destroy 
the  engines  and  to  fire.  Then  suddenly  taking  Terashima  in  his  arms 
he  jumped  overboard.  Another  Russian  also  jumped  into  the  sea  with 
a  Japanese  interpreter.  Then  the  other  Russians  commenced  hostilities. 
Meanwhile  the  magazine  of  the  Ryeshitelni  exploded,  causing  casualties 
among  the  Japanese  men.  Thereupon  the  Ryeshitelni  was  captured  and 
towed  out.    Japanese  casualties  were  1  killed,  14  wounded. 

Admiral  Togo's  Report.8 
(Received  in  Tokyo  on  August  15.) 

According  to  the  report  from  Commander  Fujimoto,  Commander 
of  the  First  Torpedo-destroyer  Flotilla,  regarding  the  capture  of  the 
Russian  destroyer  Ryeshitelni  at  Chefoo,  the  Japanese  destroyers 
Asashiwo  and  Kasumi,  under  the  command  of  Commander  Fujimoto, 
were  searching  for  the  enemy's  warships  on  the  night  of  the  10th  inst. 
when  one  of  the  latter  was  sighted  steaming  westward.  Our  destroyers 
at  once  pursued  the  enemy,  but  the  latter  disappeared  from  view  in 
the  darkness  of  the  night.  A  further  search  the  following  day  (the 
11th  inst.)  revealed  the  fact  that  the  enemy's  vessel  had  taken  refuge 
in  Chefoo  harbour.  Our  destroyers  accordingly  remained  outside  the 
neutral  zone,  and  waited  for  the  Russian  warship;  but  the  enemy  did 
not  come  out  from  the  harbour. 

On  entering  the  port  on  the  night  of  the  11th  inst.,  our  destroyers 
ascertained  that  the  enemy's  warship  was  the  destroyer  Ryeshitelni. 
It  was  also  found  that  she  had  not  been  disarmed,  but  had  taken 
in   coal,   all   the  officers  and  men   remaining  on  board.     At  3  p.m.  on 

1  Foreign  Relations,  1904,  pp.  424-425.  2  Japan  Times,  August  16,  1904. 


438  NEUTRALITY.  [PART  IV. 

the  12th  inst.,  Lieutenant  Terajima  of  the  Asashio,  accompanied  by 
ten  petty  officers  and  men,  was  despatched  on  board  the  enemy's  de- 
stroyer, for  the  purpose  of  informing  the  captain  of  the  Russian 
destroyer  that  our  vessels  had  traced  and  watched  him,  and  that,  as 
he  had  entered  the  harbour  at  4  a.m.  the  previous  day  and  had  not 
yet  left  it,  he  was  offered  an  alternative  either  to  issue  from  the  har- 
bour in  one  hour  or  surrender,  the  refusal  of  which  would  result  in 
our  disposal  of  the  Russian  destroyer  at  our  will.  The  enemy,  how- 
ever, not  only  refused  our  demand,  under  various  pretexts,  but  in- 
flicted outrages  by  force  on  our  officers  and  men.  All  of  the  Russians 
then  jumped  into  the  sea,  meanwhile  blowing  up  the  fore  part  of  the 
ship,  whereupon  we  at  once  captured  the  destroyer  and  left  the  har- 
bour at  5.15  a.m.  with  the  vessel  in  tow.  A  Russian  on  board  was 
taken   prisoner. 

By  that  time  the  captain  of  the  Bussian  destroyer  Ryeshi- 
telni,  which  was  captured  by  our  destroyers  at  Chefoo,  is  re- 
ported to  have  sent  to  the  Czar  the  following  telegram  from 
that  port: 

"  The  destroyer  Ryeshitelni,  charged  with  the  important  mission  of 
forwarding  despatches  from  Port  Arthur,  had  arrived  at  Chefoo  after 
passing  the  double  lines  of  the  Japanese  blockade.  In  compliance  with 
instructions  from  Admiral  Grigorovitch,  I  disarmed  the  destroyer, 
pulled  down  our  flag,  and  carried  out  all  the  necessary  measures. 

"While  at  anchor  at  this  port  during  the  night  of  the  11th  inst., 
we  received  a  piratical  attack  from  the  Japanese.  The  latter,  with  two 
torpedo  boats  and  one  cruiser,  approached  the  Ryeshitelni  and  de- 
spatched to  us  a  body  of  bluejackets  under  the  command  of  an  officer, 
with  the  apparent  intention  of  opening  negotiations.  Having  no  arms 
to  resist  them,  I  ordered  preparations  to  be  made  for  blowing  up  the 
Ryeshitelni.  On  the  Japanese  attempting  to  hoist  their  own  flag  over 
our  destroyer,  I  struck  the  Japanese  officer  and  threw  him  overboard. 
I  also  ordered  our  men  to  throw  the  enemy's  bluejackets  into  the 
water.  But  we  were  not  strong  enough  to  repulse  them,  and  our 
destroyer  was  finally  seized  by  the  enemy.  An  explosion  took  place  at 
the  engine  room  and  in  the  bow  of  the  ship,  but  the  ship  itself  did 
not  sink  and  she  was  taken  outside  the  port  by  the  Japanese.  One 
engineer,  one  stoker,  and  4  others  were  slightly  wounded*  I  myself 
was  wounded  in  the  right  thigh." 

Being  ignorant  of  the  true  circumstances  under  wThich  the 
unexpected  incident  occurred,  general  opinion,  wrought  up  by 


CHAP.  L,  SECT.  II.]      THE   RYESHITELNI   IN   CHEFOO.  43& 

seductive  Russian  reports,  was  for  a  while  rather  severe  towards 
Japan.  Some  blamed  the  Japanese  conduct  on  the  ground  that 
the  Japanese  warship  made  an  attack  upon  an  enemy  vessel 
already  disarmed,  though  the  Ryeshitelni  had  not  yet  fully  un- 
dergone disarmament.  Similar  misunderstanding  seems  to- 
have  so  much  affected  even  the  sympathetic  neighbours  of 
Japan. 

To  rectify  a  misunderstanding  so  harmful  to  Japan's  cause, 
the  Japanese  Government  set  about  investigating  the  real  cir- 
cumstances in  relation  to  the  disarmament  of  the  Ryeshitelni. 

The  following  report  made  by  a  member  of  the  consulate 
at  Chefoo,  who  visited  Mr.  Sa,  the  Chinese  Commodore,  and  the 
captain  of  the  Haiti,  is  quite  noteworthy,  and  it  deserves  to  be 
mentioned  in  justifying  the  Japanese  action  against  the  Rus- 
sian destroyer: 

At  4  p.m.  on  the  day  when  the  Ryeshitelni  entered  this  port,  I  pri- 
vately visited  Commodore  Sa  on  board  the  Haiti  with  Consul  Midzuno, 
and  asked  him  of  the  steps  he  had  taken  regarding  the  entry  of  the 
Russian  destroyer.  The  Commodore  replied  that  the  Russian  Com- 
mander having  shown  his  willingness  to  disarm  his  ship  and  to  give 
pledge  that  all  of  the  crew  should  no  more  partake  in  the  war,  the 
Captain  of  the  Haijung  was  sent  on  board  the  Ryeshitelni  at  3  p.m. 
to  inspect  the  disarmament,  which,  the  Commodore  stated  in  reply  to 
my  inquiry,  consisted  in  removing 

( 1 )  breech-lock  of  guns, 

(2)  blades  of  the  propeller  of  fish  torpedo  and 

(3)  essential  parts  of  the  engines. 

Upon  my  asking  him  what  necessitated  the  Russian  destroyer  tak- 
ing on  60  tons  of  English  coal,  the  Commodore  stated  that  he  had 
no  knowledge  of  it.  I  then  asked  him  how  the  arms  and  ammunition 
were  to  be  dealt  with.  He  replied  that  these  would  be  taken,  and 
stored  within  the  Eastern  Fort,  but  that  owing  to  the  heat,  only  a 
portion  of  them  would  be  landed  at  present.  Regarding  the  fish  tor- 
pedo, he  asked  my  opinion  about  the  idea  of  letting  it  remain,  re- 
moving only  the  blades  of  the  propeller.  As  to  the  engine,  he  replied 
that  no  definite  arrangement  had  been  made  for  its  removal,  and  that 
he  would  propose  leaving  the  matter  at  the  disposal  of  the  Russian 
Commander.  Not  only  was  his  way  of  dealing  with  the  question  in-, 
different  and  unsatisfactory,  but  there  was  practically  no  sign  of  ef- 


440  NEUTRALITY.  [PART  IV. 

fective  steps  being  taken  towards  disarming  the  Russian  ship.  That 
the  whole  of  the  ammunition  had  been  left  without  being  landed  and 
that  the  disarmament  had  not  been  effected  before  the  capture,  is 
shown  by  the  fact  that  when  Lieutenant  Terashima  boarded  the  ship, 
the  Russian  Commander  in  the  course  of  the  discussion  ordered  his 
men  to  be  ready  to  fire  the  magazine,  and  that  the  explosion  did  actu- 
ally take  place,  causing  casualties  among  our  crew. 

At  that  time,  Count  Lamsdorff,  the  Eussian  Foreign  Min- 
ister, had  requested  the  French  Government  to  lodge  a  strong 
protest,  through  the  French  Minister  at  Tokyo,  on  behalf  of 
Eussia  against  the  breach  of  China's  neutrality  in  connection 
with  the  Ryeshitelni  Incident. 

The  Eussian  protest  was,  however,  at  once  rejected  by  a 
letter  in  the  following  sense: 

(1)  Having  in  view  the  existence  of  a  state  of  war  be- 
tween Japan  and  Eussia,  the  Imperial  Government  finds  it 
impossible  to  give  any  consideration  to  the  protest  of  the  gov- 
ernment of  Eussia. 

(2)  But  in  order  to  remove  the  false  impression,  the 
Japanese  Government  assures  the  French  Minister  that  the 
statement  of  facts  upon  which  the  protest  is  based  is  wholly 
inaccurate,  and  that  the  action  of  Japan  in  the  matter  is  entirely 
correct. 

The  author  of  this  work  appreciates  the  first  of  the  above- 
mentioned  reasonings,  by  which  it  may  become  clear  that  one 
of  the  belligerents  has  no  power  to  protest  against  the  other. 

China  in  her  turn  demanded  the  restoration  of  the  Ryeshi- 
telni, and  lodged  a  protest  with  the  Japanese  Government  about 
the  violation  of  her  neutrality — really  an  expression  of  the 
unique  Chinese  diplomacy,  which  blames  her  benefactor  with- 
out remembering  what  she  owes.1 

1  The  Jiji's  Peking  correspondent  wires  under  date  of  August,17th,  that  the  Chinese 
Minister  to  France  reports  to  the  Chinese  Foreign  Office  that  public  opinion  in  France  is 
exceedingly  indignant  over  the  Ryeshitelni  affair. 

M.  Dubail,  the  French  Minister,  on  the  afternoon  of  the  16th  inst.,  advised  Prince 
Ching  to  assume  a  strong  attitude  in  dealing  with  Japan  in  this  connection. 

Prince  Ching  the  same  afternoon  forwarded  a  memorandum  to  Mr.  Uchida,  the 
Japanese  Minister,  demanding  an  explanation  with  regard  to  the  breach  of  neutrality 
a.nd  requesting  the  return  of  the  Ryeshitelni. 


CHAP.  I.,  SECT.  II.]      THE   RYESHITELNI   IN   CHEFOO.  441 

If  the  actual  circumstances  at  that  time  are  thought 
about,  the  Japanese  Government  has  many  reasons  to  be 
surprised  by  receiving  such  a  communication  from  such  a 
quarter  as  China.  In  fact,  the  Japanese  Government  engaged 
to  respect  the  neutrality  of  China  outside  the  region  occupied 
by  Kussia  so  long  as  Russia  did  the  same.  This  engagement 
carried  with  it  as  a  necessary  corollary  the  obligation  on  the  part 
of  China  to  exhaust  every  means  in  her  power  to  compel  obe- 
dience to  her  laws  of  neutrality.  The  Ryeshitelni,  escaping 
from  Port  Arthur,  sought  in  Chefoo  an  asylum  which  her 
home  port  no  longer  afforded  her.  She  continued  in  that  har- 
bour for  more  than  twenty-four  hours  without  betraying  the 
least  intention  of  taking  her  departure.  It  is  understood  that 
the  commander  of  the  Ryeshitelni  states  that  his  ship  was  dis- 
armed upon  arrival  in  Chefoo.  Even  if  that  statement  were 
in  accordance  with  the  facts,  disarmament  would  not  fulfil 
the  requirement  of  China's  neutrality  regulations  as  officially 
communicated  to  the  Japanese  Government,  since  those  regu- 
lations do  not  allow  the  alternative  of  disarmament  instead  of 
departure;  but  the  statement  is  untrue.  The  Ryeshitelni  was 
apparently  fully  armed  and  manned  when  visited  by  a  Japa- 
nese naval  officer  early  in  the  morning  of  the  12th  inst.  In 
thus  entering  and  remaining  in  the  port  of  Chefoo  the  Rye- 
shitelni was  guilty  of  a  breach  of  both  spirit  and  letter  of 
China's  neutrality  regulations.  In  this  situation  the  clear  duty 
rested  upon  China  to  see  to  it  that  her  neutrality  was  respected,, 
nor  was  she  in  a  position  to  plead  inability  or  lack  of  force  to 
carry  out  that  duty,  for  at  the  time  two  Chinese  men-of-war 
were  lying  in  the  harbour  of  Chefoo.  In  the  presence  of  this. 
clear  and  distinct  invasion  of  the  neutrality  of  China  by  Rus- 
sia and  the  failure  of  China  to  take  any  steps  to  prevent  an 
infringement  of  her  neutrality,  the  Japanese  Government  were 
fully  justified  in  adopting  such  measures  of  self-protection  as 
might  seem  necessary  to  them.  They  could  not  say  that  the 
unlawful  acts  of  Russia  and  that  the  supineness  of  China, 
working  together,  should  be  permitted  to  operate  to  the  preju- 


442  NEUTRALITY.  [PART  IV. 

dice  of  their  rights  and  interests.  It  is  not  alone  in  the  mat- 
ter of  the  Byeshitelni  that  there  has  been  a  violation  of  the 
neutrality  of  Chefoo.  In  installing  a  system  of  wireless  teleg- 
raphy between  Port  Arthur  and  the  Eussian  Consulate  at  Che- 
foo there  was  a  no  less  flagrant  disregard  of  China's  neutral- 
ity, and  notwithstanding  the  repeated  protests  of  the  Japa- 
nese Government,  China  permitted  the  system  to  continue  in 
operation.  The  Japanese  Government  had  every  wish  and  in- 
tention to  continue  to  respect  the  neutrality  of  China  outside 
those  regions  occupied  by  Eussia  so  long  as  Eussia  did  the 
same.  But  it  is  hardly  to  be  expected  that  they  would  allow 
their  enemy  to  escape  the  consequences  of  the  war  by  disregard- 
ing China's  neutrality. 

Therefore  the  Japanese  Government  rejected  the  Chinese 
request. 

The  following  memorandum  was  distributed  to  fortify  the 
action  of  Japan  against  any  possible  misunderstanding  of  facts : 

The  Capture  of  Ryeshitelni. 

The  status  of  China  in  the  present  struggle  is  wholly  unique.  Nearly 
all  of  the  military  operations  are  carried  on  within  her  borders.  She  is 
not  a  party  to  the  conflict,  nevertheless  her  territories  are  in  part  bel- 
ligerent and  in  part  neutral.  That  condition  of  things  is,  in  contempla- 
tion of  International  Law,  an  anomaly,  even  a  contradiction.  In  this 
case  it  is  the  creature  of  a  special  understanding  to  which  the  bellig- 
erents have  given  their  adhesion. 

With  a  view  to  limit  the  area  of  hostilities  in  the  interest  of  foreign 
intercourse  and  general  tranquillity  in  China,  the  Japanese  Government 
engaged  to  respect  the  neutrality  of  China  outside  the  regions  actually 
involved  in  the  war,  provided  Russia  made  a  similar  engagement  and 
carried  it  out  in  good  faith. 

The  Japanese  Government  considered  that  they  were  precluded  by 
their  engagement  from  occupying,  or  making  use  for  warlike  purposes 
of  any  kind,  of  the  territory  or  ports  of  China  outside  the  zone  which 
was  made  the  theatre  of  war,  because  it  seemed  to  them  that  any  such 
occupation  or  use  would  ipso  facto  convert  the  places  thus  occupied 
or  used  from  neutral  to  belligerent  territory.  Equally  it  seemed  to 
them  that  any  such  occupation  or  use  of  neutral  Chinese  territory  or 
ports  by  Russian  forces  would  give  effect  to  the  proviso  of  Japan's  en- 
gagement and  justify  her  in  considering  the  territory  or  ports  so  occu- 


CHAP.    I.,  SECT.  II.]      THE   RYESHITELNI   IN   CHEFOO.  443 

pied  or  used,  as  belligerent.  In  other  words,  the  Japanese  Government 
holds  that  China's  neutrality  is  imperfect  and  applicable  only  to  those 
places  which  are  not  occupied  by  the  armed  forces  of  either  belligerent, 
and  that  Russia  cannot  escape  the  consequences  of  unsuccessful  war 
by  moving  her  army  or  navy  into  those  portions  of  China  which,  by 
arrangement,  have  been  made  conditionally  neutral. 

The  Ryeshitelni  escaped  from  Port  Arthur,  and  sought  in  the  harbour 
of  Chefoo  an  asylum  from  attack  which  her  home  port  had  ceased  to 
afford  her.  In  taking  that  step  she  was  guilty  of  a  breach  of  the  neu- 
trality of  China,  as  established  by  the  agreement  of  the  belligerents, 
and  Japan  was  fully  justified  in  regarding  the  harbour  of  Chefoo  as 
belligerent,  so  far  as  the  incident  in  question  was  concerned.  With  the 
termination  of  that  incident  the  neutrality  of  the  port  revived.  The 
action  taken  by  Japan  in  Chefoo  was  the  direct  and  natural  conse- 
quence of  Russia's  disregard  of  her  engagement.  But  it  is  not  alone  in 
this  matter,  nor  alone  in  Chefoo,  that  Russia  has  flagrantly  violated 
China's  neutrality  and  ignored  her  own  engagement.  Shortly  after  the 
investment  and  isolation  of  Port  Arthur,  a  system  of  wireless  telegraphy 
was  installed  between  the  beleaguered  fortress  and  the  Russian  Con- 
sulate at  Chefoo.  The  system  is  still  in  operation,  notwithstanding  the 
repeated  protests  of  the  Japanese  Government.  At  Shanghai,  at  the 
beginning  of  the  war,  the  Russian  gunboat  Mandjur,  in  defiance  of 
China's  neutrality,  remained  in  port  for  weeks  after  receiving  notice  to 
leave  from  the  Chinese  authorities.  She  finally,  after  long  negotiations, 
consented  to  disarmament.  Again,  the  Russian  cruiser  Askold  and  de- 
stroyer Grozovoi  have  now  been  in  Shanghai  for  more  than  a  week, 
and  still  refuse  to  leave  or  to  disarm. 

The  Japanese  Government  has  no  intention  of  disregarding  the  neu- 
trality of  China  so  long  as  it  is  respected  by  Russia,  but  they  cannot 
consent  that  Russian  warships,  as  the  result  of  broken  engagement  and 
violated  neutrality,  shall,  unchallenged,  find  in  the  harbours  of  China  a 
safe  refuge  from  capture  or  destruction. 

The  statement  of  the  commander  of  the  Ryeshitelni  that  his  ship 
was  disarmed  upon  arrival  in  Chefoo  is  untrue.  The  vessel  was  fully 
armed  and  manned  when  visited  by  Lieutenant  Terashima  early  on  the 
morning  of  the  13th  instant.  But,  in  any  event,  disarmament  would 
not  fulfil  the  requirements  of  China's  neutrality  regulations,  and  it 
was  for  China,  and  not  Russia,  to  decide  whether  the  alternative  of 
disarmament  would  be  acceptable. 

It  has  been  suggested  in  many  quarters  that  the  present  case  may 
be  compared  with  the  case  of  the  Florida,  among  others.  But  the 
Japanese  Government  draws  a  clear  distinction  between  the  two  events. 
The  neutrality  of  Brazil  was  perfect  and  unconditional,  and  the  port 


444  NEUTRALITY.  [PART  IV. 

of  Bahia  was  a  long  distance  from  the  seat  of  war,  whereas  the  neu- 
trality of  China  is  imperfect  and  conditional,  and  the  port  of  Chefoo< 
is  in  close  proximity  to  the  zone  of  military  operations. 

The  reports  of  the  Japanese  and  Russian  officers  who  took  part  in 
the  Chefoo  incident  agree  that  the  Ryeshitelni  was  the  aggressor,  the 
first  to  commence  the  hostilities  which  resulted  in  the  capture.  That 
fact  would,  the  Japanese  Government  believe,  deprive  Russia  of  any 
grounds  for  complaint,  which  she  might  possess  if  the  lawfulness  of 
the  capture  were  otherwise  in  doubt.  In  this  respect  the  present  case 
resembles  the  cases  of  the  American  privateer  General  Armstrong  and 
the  British  ship  The  Anne. 

The  case  of  the  Ryeshitelni  is  in  itself  of  trifling  moment,  but  it 
involves  a  principle  of  paramount  importance.  Experience  has  shown 
that  China  will  take  no  adequate  steps  to  enforce  her  neutrality  laws. 
If  in  these  circumstances  the  Ryeshitelni  could  make  Chefoo  a  harbour 
of  refuge,  then  the  great  ships  of  the  Russian  Navy  might  do  the  same, 
and  nothing  would  prevent  those  ships  from  issuing  forth  from  their 
retreat  to  attack  Japan.  The  necessity  for  guarding  against  such  an 
eventuality  was  too  commanding,  too  overwhelming,  to  permit  the 
Ryeshitelni  to  stand  as  a  precedent. 

This  incident  will  not  in  any  way  affect  foreign  commerce  or  dis- 
turb the  general  situation  in  China.  It  will  merely  serve  as  a  notice 
to  Russia  that  she  must  keep  her  engagements  in  the  future. 

The  false  impression  entertained  by  the  Powers  regarding 
the  affair  seems  to  have  been  pacified  by  these  successive  expla- 
nations. 

For  the  author's  part,  he  firmly  believes  that  the  peculiar 
disposition  of  Chefoo  amply  justified  the  conduct  of  the  Japa- 
nese, where  the  naval  operations  made  it  entirely  impossible  to 
deal  with  the  Ryeshitelni  in  the  same  way  as  with  the  Mandjur 
at  Shanghai,  and  that  a  belligerent  is  entitled  by  virtue  of  jus 
angaria  to  resort  to  a  decisive  measure  with  such  an  impotent 
neutral  state  as  China. 

II.     The  Ratstoropny  Affair. 

As  a  result  of  our  rigorous  enforcement  of  neutrality  regu- 
lations upon  the  Ryeshitelni,  Eussian  warships  were  not  a  little 
restrained  from  seeking  a  ready  refuge  at  Chefoo. 

In  spite  of  that,  on  the  eve  of  the  fall  of  Port  Arthur,  the. 


CHAP.  I.,  SECT.  II.]      RUSSIAN   WARSHIPS   IN   CHEFOO.  445 

Ratstoropny,  urged  by  pressing  circumstances,  resorted  thither, 
commissioned  with  an  important  communication,  as  in  the  case 
of  the  Ryeshitelni,  and  sank  herself  by  explosion. 

Particulars  of  the  affair  were  as  follows: 

The  following  report  from  Chefoo,  dated  the  16th  inst.,  was 
received  at  the  Foreign  Office: 

"  The  Russian  torpedo-boat  destroyer  Ratstoropny  left  Port  Arthur, 
under  sealed  orders,  with  despatches,  at  3  p.m.,  November  15th,  and  was 
pursued  for  a  short  time  by  the  Japanese  Fleet.  She  entered  the  port 
of  Chefoo  to-day  at  7  a.m.  A  very  heavy  blizzard  has  visited  this  dis- 
trict since  yesterday,  and  snow  is  falling  so  heavily  that  nothing  can  be 
seen  at  sea. 

"  After  the  landing  of  the  crew  of  the  Russian  destroyer  Ratstoropny, 
three  distinct  explosions  were  heard  on  board  the  vessel,  and  clouds  of 
white  smoke  were  also  observed.  It  is  suspected  that  the  vessel  has 
been  blown  up  by  the  Russians  themselves." 

Another  telegram,  dated  the  17th,  1  a.m.,  received  in  the  same  quar- 
ter, states: 

"  The  Ratstoropny  has  been  blown  up.  Her  hull  is  submerged,  the 
funnel  showing  one  foot  and  the  masts  five  feet  above  water." 

The  crew  of  the  warship  landed  armed,  as  is  seen  from  the 
following  extract  from  a  letter,  dated  at  Chefoo,  Nov.  16,  1904: 

Many  of  the  Russian  crew  landed,  armed  with  muskets.  The  Amer- 
ican Consul-General,  the  senior  consul  in  this  port,  called  the  attention 
of  the  Russian  Consul  to  the  matter,  prompted  by  the  apprehension  that 
it  might  disturb  the  public  welfare. 

Afterwards  the  following  telegram  was  received  at  the  For- 
eign Office : * 

"  The  Chefoo  Taotai  has  lodged  the  following  demands  with  the  Rus- 
sian Consul  concerning  the  Russian  destroyer  Ratstoropny: 

"  '  1.  That  the  arms  and  ammunition  taken  by  the  crew  of  the 
Ratstoropny  when  they  landed  shall  be  handed  over  to  the  Chinese 
authorities. 

"  '  2.  That  all  the  officers  and  men  from  the  said  destroyer  shall  be 
detained  on  board  the  Chinese  cruiser  Haiyung. 

"  '  3.  That  the  arms  and  ammunition  referred  to  in  clause  1  shall 
also  be  placed  in  charge  of  the  Haiyung. 

1  The  Japan  Times,  November  25,  1904. 


446  NEUTRALITY.  [PART  IV. 

" '  4.  That  the  Russian  officers  and  men,  on  embarking  on  the  Hai- 
yung, shall  take  the  customary  oath.' 

"  All  the  above  provisions  have  been  accepted  by  the  Russian  Consul, 
and  were  to  have  been  carried  out  during  the  night  of  the  17th. 

"  The  Ratstoropny,  which  was  blown  up  within  the  anchorage  for 
merchantmen,  has  so  far  been  left  alone,  only  a  small  number  of  sen- 
tinels detailed  from  the  Haiyung  patrolling  the  neighbourhood  on  board 
a  steel  lighter.  A  red  light  is  also  displayed  on  one  of  the  masts  of 
the  sunken  vessel." 

The. crew  of  the  Ratstoropny  was  sent  to  Shanghai,  where 
they  were  interned. 

Later  on  the  report  was  sent  in  that  the  crew  of  the  Bus- 
sian  destroyer  Ratstoropny  had  arrived  at  Shanghai  from  Che- 
foo  by  the  Chinese  cruiser  Haiyung  on  the  evening  of  Novem- 
ber 25. 

Although  the  said  warship  sank,  it  was  decided  to  forward 
her  crew  to  Shanghai.  The  following  memorandum  was  sent 
to  the  Chinese  Government  to  provide  for  the  future: 

Memorandum. 

According  to  information  sent  in  by  Japanese  Consul  Midzuno  at 
Chefoo  and  other  sources,  the  Russian  warship  Ratstoropny,  which  en- 
tered the  said  port,  ventured  to  conduct  itself  as  stated  below: 

1.  The  Russian  torpedo  destroyer  Ratstoropny  entered  Chefoo  on 
the  16th  inst.,  carrying  under  a  sealed  order  a  secret  communication,, 
and  her  commander  at  once  betook  himself  to  the  Russian  Consul,  where 
he  had  the  said  communication  forwarded  to  his  Government,  thus 
making  Chefoo  a  base  of  martial  communication. 

2.  Some  of  the  bluejackets  of  the  said  torpedo  destroyer,  who  landed 
the  same  night,  were  carrying  muskets,  so  that  the  Chinese  Government 
tacitly  permitted  a  part  of  the  belligerent  combatants  with  their  arms 
to  enter  her  own  territory. 

3.  Notwithstanding  the  official  communication  sent  to  the  Japanese 
Consul  Midzuno  the  same  afternoon,  in  which  was  contained  the  Rus- 
sian Consul's  notification  to  the  effect  that  the  commander  of  the 
Ratstoropny,  which  entered  the  port  owing  to  stormy  weather,  had 
decided  to  disarm  the  ship  and  put  it  in  custody  of  the  Chinese  authori- 
ties, the  Chinese  Government  suffered  the  warship  to  destroy  herself 
the  same  night  within  the  harbour  allotted  for  the  anchorage  of  mer- 
chantmen, to  the  considerable  impediment  of  international  commerce. 


CHAP.  I.,  SECT.  III.]      RUSSIAN   WARSHIPS   AT   KIAOCHOW.      447 

From  these  facts  the  conclusion  may  be  naturally  drawn  that  neu- 
trality regulations  are  not  sufficiently  observed  in  Chefoo,  and  it  is 
deemed  proper  on  this  occasion  to  accordingly  admonish  the  Chinese 
Government  so  as  to  facilitate  Japan's  martial  operations  in  the  future. 

Dated  November,  1904. 

III.  Russian  Warships  Which  Escaped  into  Chefoo  Har- 
bour after  the  Fall  of  Port  Arthur. 

Dated  June  2,  1905,  the  following  report  was  sent  in: 

The  names  of  the  Eussian  warships  which  came  into  this 
port  are  as  follows:  The  Skori,  the  Statni,  the  Vlastni,  the 
Serditi.    The  ships  are  painted  in  war  colours. 

Accordingly,  the  Imperial  Government  demanded  that  Mr. 
Torai  take  proper  steps  immediately  against  the  crews  of  the 
Eussian  men-of-war  in  refuge  in  Chefoo,  otherwise  Japan  should 
be  compelled  to  take  necessary  measures  in  self-defence. 

According  to  Japan's  desire,  the  disarmament  was  set  about,, 
breech  blocks  and  torpedo  discharges  were  dislocated,  and  am- 
munition shells  and  torpedo-tightening  heads  removed.  The 
crews  also  were  interned  on  board. 

Sect.  III.     Russian  Warships  at  Kiaochow. 

When  the  Powers'  attitudes  were  minutely  studied  in  con- 
nection with  the  flight  of  Eussian  warships  into  neutral  ports, 
the  author's  conviction  is,  that  the  strictest  and  most  impartial 
observer  of  the  obligations  which  International  Law  enforces 
on  neutrals  will  be  found  to  be  the  German  Government;  so 
that  Germany  is  really  entitled  to  share  with  Japan  the  credit, 
for  adding  to  International  Law  the  new  principles  that  a  bel- 
ligerent warship,  upon  entering  a  neutral  port,  shall  depart 
within  24  hours,  and  if  unable  to  do  so,  shall  be  disarmed,  and 
the  crew  on  board  either  detained  there,  or  released  on  parole. 

A  similar  opinion  by  the  author's  colleague,  Professor  Liszt,, 
came  to  notice,  which  afforded  great  satisfaction. 

Germany's  Neutrality. 
The  well-known  professor  of  public  law,  Franz  von  Liszt,  states,  in 
an  article   in  the   Deutsche  Juristen   Zeitung    (German  Law  Gazette),. 


448  NEUTRALITY.  [PART  IV. 

that  the  German  Chancellor  has  brought  into  force  at  Tsingtao  exactly 
what  Liszt  has  hitherto  considered  as  the  correct  interpretation  of  In- 
ternational Law. 

After  the  memorable  naval  engagement  of  August  10,  1904, 
six  Russian  warships — Tzesarevitch,  Novik,  Bezposhchadni, 
Bezstrachni,  Bezschumni,  and  Boiki — fled  into  Kiaochow. 
Later,  on  January  2,  1905,  when  approaching  Port  Arthur, 
the  Smyeli  took  flight  into  the  same  port. 

Below  are  inserted  particulars  concerning  the  more  impor- 
tant of  these  warships. 

The  first  telegraphic  report  containing  details  was  as  fol- 
lows: 

The  Asahi  publishes  a  detailed  account,  prepared  by  its  correspondent 
at  Kiaochow,  of  the  flight  into  that  port  of  the  Russian  war  vessels 
after  the  recent  naval  engagement  off  Port  Arthur.  We  reproduce  the 
following  from  his  story: 

"  At  4.30  p.m.  on  the  11th  inst.,  a  signal  was  received  from  the  signal 
station  that  Russian  warships  were  arriving.  Presently  the  Russian 
torpedo  boat  ( ?  destroyer)  Bezschumni  entered  the  harbour,  being  fol- 
lowed by  the  cruiser  Novik,  while  the  battleship  Tzesarevitch  arrived  at 
about  7.30  p.m.  Owing  to  the  darkness,  the  latter  vessel  could  not  be 
identified  at  the  time  of  her  arrival,  and  was  supposed  to  be  the  Askold 
by  the  Germans  and  other  foreigners  at  the  port. 

During  the  same  night  the  Novik  was  supplied  with  coal  by  the 
British  steamer  Whig  (?),  which  had  been  staying  at  Kiaochow  during 
the  past  six  or  seven  days.  This  steamer  had  originally  been  destined 
for  Port  Arthur,  with  coal  for  the  Russian  Squadron  there,  but  could 
not  reach  her  destination.  Throughout  the  night  the  Novik  took  in 
coal,  sufficient,  according  to  a  German,  to  enable  her  to  proceed  not 
only  to  any  near  port,  but  to  any  distant  place  she  might  select.  The 
vessel  left  Kiaochow  at  5.30  a.m.  on  the  12th,  and  two  Russian  torpedo 
boats  arrived  at  about  10  a.m.  the  same  day. 

The  Japanese  war  vessels  were  expected  by  the  Germans  on  the  12th, 
but  when  the  former  did  not  arrive  at  Kiaochow  during  the  day,  two 
gunboats  were  placed  outside  the  harbour  to  provide  against  any  emer- 
gency during  the  night.  .  .  . 

The  Tzesarevitch  had  her  foremast  carried  away  and  had  a  very  big 
hole  on  her  aft  funnel.  In  addition,  her  bridge  was  riddled,  the  engines 
were  rendered  useless,  and  the  rudder  was  destroyed.  The  vessel  was 
also  damaged  at  three  places  below  the  water  line,  which  necessitated 


CHAP.  L,  SECT.  III.]      RUSSIAN   WARSHIPS  AT   KIAOCHOW.      449 

the  constant  working  of  the  pumps.  It  was  only  because  the  vessel  was 
a  twin-screw  one  that  she  was  able  to  forge  ahead,  though  at  the  low 
speed  of  five  knots  an  hour.  During  the  engagement  of  the  10th  inst. 
the  Japanese  shell  fire  was  concentrated  on  the  bridge  of  the  Tzesare- 
vitch.  The  Commander-in-Chief  of  the  Russian  Squadron  and  the  cap- 
tain of  the  vessel  were  watching  the  fight  from  the  bridge,  when  a  shell 
struck  near  them  and  both  were  killed  instantaneously.  The  Assistant 
Commander-in-Chief  was  also  wounded  at  the  same  time.  All  the  offi- 
cers of  the  Tzesarevitch,  with  the  exception  of  a  few,  were  either  killed 
or  wounded  in  the  engagement. 

Thereupon,  the  Japanese  Minister  at  Berlin  saw  the  Acting 
Minister  for  Foreign  Affairs  on  August  12th.  He  was  as- 
sured that  the  German  Government,  in  accordance  with  their 
neutrality,  would  not  delay  in  taking  proper  measures  in  the 
matter,  but  would  telegraph  necessary  instructions  to  the  Gov- 
ernor. He  then  said  that  he  was  surprised  that  the  Eussian 
cruisers  should  have  escaped  the  Japanese  Fleet  and  entered 
Kiaochow,  and  hoped  that  German  authorities  there  would  make 
no  mistakes  in  dealing  with  the  affair. 

It  is  reported  that  instructions  by  the  German  Government 
were  sent  to  the  Governor  of  Kiaochow  in  the  following  sense: 

Any  belligerent  ship  entering  the  port  shall  be  allowed  to 
take  on  coal,  so  as  to  enable  her  to  reach  the  next  nearest  home 
port,  but  she  must  leave  harbour  within  24  hours  from  the 
time  of  her  entry,  and  should  such  ship  be  unable  to  do  so,  then 
a  further  period  of  24  hours  will  be  allowed.  Should  any  ship 
refuse  to  leave  within  the  specified  time,  then  she  shall  be  dis- 
armed and  kept  in  charge  by  the  authorities. 

On  the  16th  of  August,  1905,  the  Eussian  warships  were 
disarmed  at  Kiaochow. 

By  that  time,  a  report  having  been  sent  in  that  a  Eussian 
torpedo  boat,  which  had  once  left  there,  had  again  entered  the 
port,  the  Japanese  Government  instructed  Minister  Inouye  to 
refer  the  matter  to  the  German  Government,  which  sent  to 
him  the  following  reply: 

German  marine  officers  at  Tsingtao  have  strict  instructions  as  to 
their  duties   for  the  maintenance  of  absolute  neutrality.     They  know 


450  NEUTRALITY.  [PART  IV. 

especially  that  they  must  not  allow  Tsingtao  to  be  made  a  naval  base 
by  either  of  the  belligerents,  and  that  consequently  a  re-entrance  of 
Russian  ships  into  that  port  is  inadmissible.  This  being  so,  the  highest 
marine  administrative  authorities  at  home  refuse  to  give  credit  to  the 
report  that  a  Russian  torpedo  destroyer  had  re-entered  the  port." 

On  the  occasion  of  disarmament,  the  following  official 
document  was  issued  by  the  Governor  at  Tsing-tao : 

Auf  Befehl  S.  Majestat  des  Kaisers  sind  die  in  Hafen  von  Tsingtan 
liegenden  4  Russische  Kriegschiffe  (Limenschiff,  Czarevitsch,  und  drei 
torpedoboate)   heute  entraffnet  worden. 

Es  wird  darauf  hingewieren  dass  die  vorlanfig  auf  den  Schiffen  ver- 
bleibende  Russische  Besatzung  als  intermiert  gilt  und  sich  an  Kriegs- 
aperationen  nicht  beteiligen  darf  und  dass  das  Publikum  ihr  zu  Reinen 
gegen  die  Neutralitaet  verstossenden  Handlung  vorschub  lasten  darf. 

Tsingtao,  den  15  ten  August,  1904. 

Der  Kaiserliche  Gouverneur  Truppel. 

Acting  under  instructions  from  his  Government,  the  Ger- 
man Minister  on  August  23rd  inquired  of  the  Japanese  Gov- 
ernment if  they  had  any  objection  to  the  release  of  the  crews 
of  the  Eussian  fugitive  warships,  then  at  Tsing-tao,  on  parole, 
and  with  the  Eussian  pledge  that  the  released  should  not  en- 
gage in  any  warlike  affair  till  the  end  of  the  present  war,  since 
the  German  Government  had  considerable  difficulty  in  detain- 
ing the  said  crew  in  that  locality,  or  anywhere  in  the  German 
territory. 

Thereupon,  the  naval  authorities  having  been  consulted, 
Baron  Komura  replied  to  the  German  Minister  as  follows: 

"  As  for  the  Eussian  warships  which  escaped  and  entered 
neutral  ports  after  the  naval  engagement  of  August  19th,  and 
are  to  be  disarmed  there,  the  Japanese  authorities  intend  to 
notify  the  Powers  concerned,  that  their  request  is  to  have  the 
crews  detained  in  the  respective  neutral  territories  as  long  as 
the  war  lasts,  so  as  not  to  afford  the  enemy  any  additional  rein- 
forcements. And  now  that  the  British  and  Chinese  Govern- 
ments have  already  agreed  to  Japan's  request,  the  proposal  sent 


CHAP.  L,  SECT.  III.]      RUSSIAN  WARSHIPS  AT  KIAOCHOW.      451 

in  by  the  German  Minister  must,  though  unwillingly,  be  dis- 
sented to." 

The  German  Government  then  renewed  its  negotiations  for 
the  exchange  of  prisoners  of  war,  for  a  certain  number  of 
Japanese,  who,  according  to  the  German  report,  were  detained 
in  Kussia  as  prisoners  of  war,  adding  that  if  the  said  exchange 
could  not  be  carried  out,  the  Eussian  officers  and  bluejackets 
might  be,  with  our  consent,  transmitted  from  Tsing-tao  to  some 
locality  in  the  German  territory. 

The  German  Government  seems  to  have  been  thus  anxious 
to  get  rid  of  the  Eussian  fugitives  because,  being  almost  equal 
in  number  to  the  German  garrison  stationed  there,  they  might 
prove  intractable. 

On  September  5th  the  German  Government  decided  to  keep 
the  officers  and  men  of  the  Eussian  men-of-war  for  the  time  at 
Kiaochow  on  board  their  ships,  and  perhaps  in  the  winter  they 
might  be  transported  to  a  place  in  Germany. 

The  information  concerning  the  Eussian  warships  which  es- 
caped after  the  fall  of  Port  Arthur  was  as  follows : 

On  January  2nd,  at  11  a.m.,  a  steamship  of  1300  tons  came 
into  Chingtan  hoisting  British  flags,  which  twenty  minutes 
later  were  changed  for  Eussian  merchantmen's  flags.  The  said 
steamer  was  originally  named  Bintau,  though  a  part  of  the 
name  was  erased  soon  after  her  arrival.  She  had  a  crew  con- 
sisting entirely  of  Eussians,  which  included  800  men  in  blue- 
jackets' uniform,  and  was  laden  with  cannons  and  ammunition. 
Two  or  three  officers  were  actually  seen  landing. 

Prior  to  the  receiving  of  Japanese  representations,  which 
were  at  once  despatched,  the  German  Government  issued  appro- 
priate instructions  as  regards  the  internment  of  the  said  vessel. 

Thereupon  the  Japanese  Minister  to  Germany  expressed  to 
the  German  Government  the  satisfaction  with  which  the  Japa- 
nese Imperial  Government  had  learned  how  promptly  and  satis- 
factorily the  German  Government  had  taken  proper  steps  con- 
cerning the  Eussian  fugitive  warship. 

After  the  advent  of  peace,  the  five  torpedo  boats  left  for 


452  NEUTRALITY.  [PART  IV. 

Vladivostock  in  the  morning  of  September  28th,  and  the  Tze- 
sarevitch  for  Saigon  on  November  11th. 

Sect.  IV.     A  Russian  Warship  at  Manila. 

Among  the  Eussian  Fleet,  which  was  miserably  discomfited 
at  the  memorable  naval  engagement  of  the  Japan  Sea,  three 
cruisers,  the  Aurora,  Oleg,  and  Zamtchug,  managed  to  reach 
Manila  on  June  3rd. 

Previously  Japan  had  been  furnished  with  the  following 
report : 

The  Philippine  Islands  Constabulary  have  received  a  tele- 
gram to  the  effect  that  six  men-of-war  were  sighted  on  the 
afternoon  of  June  2nd  a  few  miles  off  Lingayen  Gulf,  and  at 
5.30  p.m.  three  entered  the  Port  of  Sual,  Philippine  Islands. 
They  are  the  Aurora,  Zamichug,  and  Oleg. 

On  June  8,  1905,  Mr.  Wright  replied  that,  acting  under 
instructions  from  Washington,  the  Russian  Admiral  has  been 
notified  that  he  must  leave  this  harbour  within  twenty-four 
hours,  beginning  at  twelve  o'clock  noon  of  the  7th  day  of  June, 
and  that  he  might  take  on  supplies  and  coal  for  the  voyage  to 
his  nearest  home  port  within  that  period.  The  Russian  Admi- 
ral has  been  further  advised  that  in  the  event  he  does  not  leave 
Manila  harbour  within  the  time  named,  his  ships  will  be  in- 
terned until  the  close  of  hostilities. 

As  soon  as  these  Russian  warships  entered  Manila,  Admiral 
Enquist,  accompanied  by  Admiral  Train,  called  at  Ayunta- 
miento  and  paid  their  respects  to  the  chief  executive. 

The  Admiral  asked  the  Manila  Government  for  permission 
to  effect  repairs  to  these  vessels,  which  were  unable  to  safely 
navigate,  owing  to  their  having  been  damaged.  The  special 
investigation  committee  appointed  by  the  Manila  Government 
subsequently  reported  that  the  repairs  would  take  sixty  days 
to  execute. 

The  following  is  the  correspondence  between  Japanese  Con- 
sul Narita  and  the  American  authorities  at  Manila  concerning 
this  affair : 


CHAP.  I.,  SECT.  V.]      THE   DIANA  AT  SAIGON.  453 

On  the  6th  of  June,  1905,  Mr.  Narita  wrote  to  Mr.  Luke  E. 
Wright,  Governor-General  of  the  Philippine  Islands,  to  invite 
the  Governor's  attention  to  the  fact  that  three  Eussian  men- 
of-war,  Aurora,  Zamtchug,  and  Oleg,  had  been  in  Manila  har- 
bour since  10  p.m.  of  the  3rd  of  June,  and  requested  to  know 
what  measures  would  be  taken  by  him  in  regard  to  their  dis- 
position, the  twenty-four  hours  limit  having  already  passed. 

Dated  June  8,  1905,  however,  the  following  report  was 
sent  in: 

The  prescribed  period  of  24  hours  having  expired,  the  Russian  war 
vessels  were  put  in  custody  of  the  Commander-in-Chief  of  the  American 
Fleet.  Nevertheless,  as  to  disarmament,  he  is  not  authorised  to  carry 
it  out  until  he  hears  further  from  his  Government,  for  the  instructions 
received  by  him  were  simply  about  the  internment  of  the  said  vessels. 
And  he  himself  finds  no  necessity  of  taking  such  a  step. 

After  special  investigation,  the  Japanese  Imperial  Govern- 
ment consented  to  compromise  as  follows,  thus  making  the 
only  exception  to  the  principle  held  by  her  Government  con- 
cerning the  enemy's  fugitive  war  vessels: 

"  Our  representative  at  Manila  need  make  no  further  request  as 
regards  the  disarmament  of  the  warships  in  question,  now  that  American 
authorities,  on  their  own  responsibility,  have  taken  them  in  custody, 
with  due  provisions  so  as  to  prevent  them  from  any  hostile  conduct." 

After  the  restoration  of  peace  the  Zamtchug  and  the  Oleg 
sailed  homeward,  the  former  on  November  27th,  1905,  and  the 
latter  on  the  28th  of  the  same  month. 


Sect.  V.     The  Diana  at  Saigon. 

After  the  naval  engagement  of  August  10,  1904,  the 
Diana,  the  Eussian  warship,  succeeded  in  reaching  Saigon. 

It  is  reported  that  the  cruiser  which  arrived  at  Saigon  on 
August  24th  called  at  Kwang-chou-wan  on  her  way  thither, 
where  she  took  in  enough  coal  to  enable  her  to  reach  the  near- 
est port.    In  the  evening  of  August  20th  she  entered  the  Along 


454  NEUTRALITY.  [PART  IV. 

Bay,  where  several  tons  of  coal  were  again  taken  in  and  a  pilot 
hired,  and  departed  within  24  hours,  on  the  8th  of  August. 

The  first  question  is  whether  the  French  Government  failed  in 
its  neutrality  obligation  in  twice  supplying  the  Diana  with  coal. 

A  certain  lawyer  discussed  at  that  time  the  present  case 
as  follows: 

"  According  to  international  regulations  observed  by  the 
Powers,  England  and  the  United  States  of  America  included,  a 
belligerent  war  vessel  is  prohibited  to  take  a  second  coal  supply 
within  an  interval  of  at  least  three  months.  (In  1870,  in  the 
time  of  the  Franco-German  War,  England,  the  United  States, 
Spain,  and  Holland  issued  a  declaration  of  a  like  purport,  and 
in  the  present  war  England  and  two  or  three  other  states  did 
the  same.) 

"  Japan,  also  in  her  neutrality  regulations,  issued  during  the 
Spanish-American  War,  i.e.,  in  the  course  of  1898  (Imperial 
Ordinance,  No.  87,  Art.  VI.),  declared  that  the  second  coaling 
was  not  permitted  to  a  belligerent  warship  until  full  three 
months  had  expired  after  the  first  coaling. 

"  Now  to  turn  to  the  French  attitude.  Explanations  given 
by  French  authorities  concerning  their  recently  issued  neu- 
trality regulations  are  as  follows: 

"  As  much  coal  might  be  afforded  as  was  absolutely  neces- 
sary for  reaching  the  next  port,  which  according  to  French 
precedents,  was  not  confined  to  the  nearest  home  port.  Accord- 
ing to  this  explanation,  France  does  not  seem  as  yet  to  have 
any  settled  principle  as  to  how  many  times  the  coaling  may  be 
allowed. 

"  If  the  enemy's  war  vessels,  availing  themselves  of  such  a 
defect  in  the  French  regulations,  procure  coal  repeatedly  in  a 
short  space  of  time,  Japan  cannot  be  without  much  apprehen- 
sion that  such  conduct  will  directly  promote  the  enemy's  mar- 
tial operations,  impeding  at  the  same  time  her  own  efficiency." 

The  author's  opinion  is  also  that  advice  be  given  the  French 
Government  to  establish  for  the  future  a  certain  limitation  to 
the  coaling  of  a  belligerent  vessel. 


CHAP.  I.,  SECT.  VI.]      THE   LENA   IN   SAN   FRANCISCO.  455 

Sect.  VI.  The  Sojourn  of  the  Russian  Auxiliary  Cruiser 
Lena  in  the  Harbour  of  San  Francisco. 

A  telegram  received  at  the  Foreign  Office  says : x 

The  Russian  auxiliary  cruiser  Lena,  which  arrived  at  San  Francisco 
on  September  11  from  Vladivostock,  is  commanded  by  Lieutenant  Ber- 
linsky,  and  has  an  armament  of  23  guns,  with  a  crew  of  504,  including 
16  officers.  The  cruiser  left  Vladivostock  just  a  month  ago,  arriving  at 
San  Francisco  via  St.  Mary  and  the  Alshan  archipelago.  It  is  reported 
that  her  engines  are  greatly  damaged  and  will  take  at  least  a  month 
to  repair.  It  is  further  reported  that  the  Commander  of  the  Lena  states 
that  whilst  halfway  across  the  Pacific  he  sighted  three  Russian  war- 
ships, which  were  proceeding  in  an  easterly  direction. 

The  following  are  the  documents  concerning  this  incident: 

Mr.  Hay  to  Mr.  Takahira.2 

Department  of  State,  Washington,  May  5,  1904. 
My  Dear  Mr.  Minister: 

In  a  communication  dated  the  14th  ult.  the  Secretary  of  the  Navy 
enclosed  a  letter  from  the  commandant  of  the  Mare  Island  Navy- 
Yard,  transmitting  copies  of  circulars  received  in  an  envelope  from 
the  consulate-general  of  Japan  at  New  York  City,  addressed  "  To  the 
Japanese  serving  in  the  United  States  Navy,"  soliciting  subscriptions 
to  Japanese  bonds,  contributions  to  the  relief  fund  for  Japanese  sol- 
diers and  sailors,  and  in  aid  of  the  Red  Cross  Society  of  Japan.  In 
view  of  the  President's  proclamation  of  neutrality,  the  Secretary  of 
the  Navy  asked  whether  the  circulars  should  be  forwarded. 

While  Japanese  in  the  United  States  doubtless  have  a  right  to  sub- 
scribe to  Japanese  bonds  or  to  contribute  to  relief  and  Red  Cross 
Society  funds  of  Japan,  yet  it  is  undesirable  that  such  contributions 
should  be  sought  through  the  naval  official  channels  of  this  Govern- 
ment. 

Pursuant  to  these  views,  the  commandant  of  the  Mare  Island  Navy- 
Yard  has  been  instructed  not  to  forward  to  the  Japanese  serving  in 
the  United  States  any  circulars  of  the  character  above  described. 

I  now  bring  the  matter  to  your  attention,  with  the  request  that 
you  will  inform  the  consular  officers  of  Japan  in  the  United  States 
of  the  attitude  of  this  Government  in  the  matter. 

I  am,  etc., 

(Signed)     John  Hay. 

1  The  Japan  Times,  September  13,  1904.       2  Foreign  Relations,  1904,  pp.  427-430. 


456  NEUTRALITY.  [PART  IV. 

Mr.  Takahira  to  Mr.  Hay. 

Legation  of  Japan,  Washington,  May  6,  1904. 
My  Dear  Mb.  Secbetaby: 

I  beg  to  acknowledge  the  receipt  of  your  note  of  the  5th  instant 
with  reference  to  the  circulars  sent  from  the  Consulate-General  of  Japan 
at  New  York  to  the  commandant  of  the  Mare  Island  Navy- Yard  and 
transmitting  copies  of  circulars  addressed  "  To  the  Japanese  serving 
in  the  United  States  Navy,"  in  which  subscriptions  to  Japanese  bonds, 
and  contributions  to  relief  funds  for  Japanese  soldiers  and  sailors,  and 
in  aid  of  the  Red  Cross  Society  of  Japan  are  solicited. 

Noting  what  you  say  concerning  the  undesirability  of  forwarding 
such  communications  through  naval  official  channels,  I  shall  communi- 
cate with  the  Consul-General  of  Japan  at  New  York  upon  the  subject 
and  give  him  the  necessary  instructions  on  the  subject. 

I  am,  etc. 

(Signed)     K.  Takahiba. 

(Translation  of  the  telegram  received  by  the  Japanese  Minister 
from  Baron  Komura.  Handed  to  Mr.  Adee  by  Mr.  Takahira,  Septem- 
ber 13,  1904.) 

Mr.  K.  Uyeno,  Japanese  Consul  at  San  Francisco,  telegraphs  that 
the  Russian  auxiliary  cruiser  Lena,  with  a  crew  of  500  men  and  arma- 
ment of  27  quick-firing  guns,  has  entered  the  harbour  of  San  Francisco, 
the  object  of  which  is  said  to  be  for  repairs  to  her  boilers  and  engines. 

You  are  hereby  instructed  to  call  the  attention  of  the  United  States 
Government  to  the  above  fact  as  reported,  and  to  say  to  the  Secretary 
of  State  that  the  Imperial  Government  expects  that  appropriate  meas- 
ures regarding  the  matter  will  be  taken  by  the  United  States  Govern- 
ment without  delay. 

Mr.  Adee   to  Mr.  Takahira. 
Department  of  State,  Washington,  September  15,  1904. 
Sib: 

I  have  the  honour  to  advise  you  that  the  President  has  to-day, 
through  this  Department  and  the  Department  of  the  Navy,  issued 
an  order  directing  that  the  Russian  armed  transport  Lena,  which  ar- 
rived in  the  harbour  of  San  Francisco  on  the  1 1th  instant,  be  taken 
in  custody  by  the  naval  authorities  of  the  United  States  and  dis- 
armed. The  conditions  prescribed  by  the  President  for  disarmament 
are  that  the  Russian  vessel  be  taken  to  the  Mare  Island  Navy  Yard, 
and  there  disarmed  by  the  removal  of  small  guns,  breech-blocks  of 
large  guns,  small  arms,  ammunition  and  ordnance  stores,  and  such 
other  dismantlement  as  may  be  prescribed  by  the  Commandant  of  the 


CHAP.  I.,  SECT.  VII.]      THE   TEREK  AT   BATAVIA.  457 

Navy  Yard;  that  the  captain  give  a  written  guarantee  that  the  Lena 
shall  not  leave  San  Francisco  until  peace  shall  have  been  concluded; 
that  the  officers  and  crew  shall  be  paroled  not  to  leave  San  Francisco 
until  some  other  understanding  as  to  their  disposal  may  be  reached 
between  the  Government  of  the  United  States  and  both  the  belligerents ; 
that  after  disarmament  the  vessel  may  be  removed  to  a  private  dock 
for  such  reasonable  repairs  as  will  make  her  seaworthy  and  preserve 
her  in  good  condition  during  her  detention;  or  may  be  repaired  at 
the  Navy  Yard,  if  the  Russian  Commander  should  so  elect;  that, 
while  at  a  private  dock,  the  Commandant  of  the  Navy  Yard  at  Mare 
Island  shall  have  custody  of  the  ship  and  the  repairs  shall  be  over- 
seen by  an  engineer  officer  to  be  detailed  by  the  Commandant  of  the 
Navy  Yard;  and  that,  when  so  repaired,  if  peace  shall  not  then  have 
been  concluded,  the  vessel  shall  be  taken  back  to  the  Mare  Island  Navy 
Yard  and  be  there  held  in  custody  until  the  end  of  the  war.  It  is 
further  to  be  understood  that  the  cost  of  repairs,  of  private  docking 
and  of  the  maintenance  of  the  ship  and  her  officers  and  crew  while  in 
custody  is  to  be  borne  by  the  Russian  Government,  but  the  berthing 
at  Mare  Island  and  the  custody  and  surveillance  of  the  vessel  is  to 
be  borne  by  the  United  States. 

The  President  has  taken  this  action  upon  the  written  request  of 
the  commander  of  the  Lena,  addressed  to  the  Rear  Admiral,  setting 
forth  that,  as  the  vessel  is  incapable  of  putting  to  sea  without  need- 
ful repairs,  she  must  disarm,  and  asks  that  needful  repairs  be  per- 
mitted after  disarmament. 

Be   pleased   to  accept,   sir,   the  renewed    assurances   of   my   highest 

consideration. 

(Signed)     Alvey  A.  Adee, 

Acting  Secretary  of  State. 

Sect.  VII.     The  Terek  at  Batavia. 

In  regard  to  the  Terek,  which  survived  the  naval  engage- 
ment on  the  Sea  of  Japan,  and  resorted  to  Batavia  on  June  29, 
1905,  the  details  are  as  follows: 

The  Eussian  auxiliary  cruiser  Terek  came  into  the  harbour 
of  Batavia,  Dutch  India,  on  June  29th,  and  her  commander 
applied  to  Dutch  authorities  for  a  supply  of  coal,  provisions, 
etc.,  which  application  the  Dutch  Governor-General  granted  in 
so  far  as  the  stipulations  of  the  neutrality  regulations  sanc- 
tioned. On  being  asked  for  more  coal,  the  Governor- General 
gave  absolute  refusal,  and  they  set  about  loading  the  said  war- 


458     •  NEUTRALITY.  [PART  IV. 

ship  with  coal  in  full  conformity  with  the  spirit  of  the  neu- 
trality regulations,  which  was,  however,  found  to  take  more 
than  the  period  granted  to  a  belligerent  warship  in  a  neutral 
port  by  the  same  regulations.  The  commander  having  declined 
to  leave  the  port  with  so  little  coal,  the  disarmament  of  the 
warship  was  commenced  on  the  expiration  of  24  hours,  the  term 
prescribed  by  the  neutrality  regulations.  The  crew  and  officers 
were  detained  on  board. 

The  following  reports  are  given  concerning  Russian  blue- 
jackets left  on  land  at  Batavia : 

The  Russian  Auxiliary  Cruiser  Lyon  Calling  at  Batavia. 

The  Russian  auxiliary  cruiser  Lyon  came  into  the  Port  of  Batavia 
at  8.30  a.m.,  on  the  14th  inst.,  and  left  within  the  period  granted, 
after  having  been  supplied  with  coal,  provisions,  drinking-water,  etc., 
in  conformity  with  the  stipulations  of  the  Dutch  Neutrality  Regula- 
tions. The  said  warship,  as  the  commander  said,  stood  aloof  from 
the  naval  engagement  of  the  Sea  of  Japan,  and  bore  no  trace  of  dam- 
age, not  having  met  with  the  Japanese  men-of-war.  After  she  had  left 
the  port,  two  officers  and  sixty  bluejackets  were  found  remaining  on 
land,  who  were  accordingly  put  in  detention  by  the  Governor-General 
and  are  still  detained.  Although  their  delay  is  alleged  to  be  due  to 
illness,  drunkenness  seems  really  to  be  the  cause.  The  said  Russian 
crew  detained  at  Batavia  should  be  released  on  parole  if  they  will  not 
again  betake  themselves  to  arms. 


CHAPTER  II. 

THE  TREATMENT  OF  BELLIGERENTS  IN 
NEUTRAL  PORTS. 

Sect.  I.     General  Observations. 

This  subject  may  be  discussed  under  various  aspects,  which 
may  be  classified  as  follows: 

I.  The  case  of  the  rescue  of  combatants  by  neutral  ships 
or  men-of-war  when  their  warships  are  destroyed,  as  the 
Variag  and  Koreetz,  which  sank  in  the  harbour  of  Chemulpo 
during  the  Russo-Japanese  War.  In  such  a  case  the  following 
questions  arise: 

a.  Where  must  the  combatants  be  carried?  Are  they  to 
be  handed  over  to  the  victor,  or  are  they  to  be  taken  to  neutral 
States? 

b.  When  they  are  taken  to  neutral  States,  are  they  to  be 
interned  or  paroled  ? 

c.  Are  they  prisoners  or  not?  And  can  we  take  them  for 
shipwrecked  men? 

II.  The  treatment  of  combatants  from  warships  when 
they  are  stranded  in  their  escape  or  during  an  ordinary  voyage 
without  being  destroyed  in  battle. 

The  best  example  is  the  Russian  torpedo  destroyer  Bruni, 
which  stranded  outside  the  harbour  of  Wei-Haiwei,  and  whose 
officers  and  crew  were  rescued  by  a  British  warship. 

III.  The  treatment  of  crews  of  belligerent  warships  stay- 
ing in  a  port  of  a  third  Power  when  war  suddenly  broke  out 
between  their  own  and  some  other  country,  as  the  case  of  the 
Mandjur. 

IV.  The  treatment  of  the  crews  of  warships,  such  as  the 

459 


460  NEUTRALITY.  [PART  IV. 

Russian  torpedo  destroyers  Ryeshitelni  and  Rastoropny,  which 
escaped  to  a  neutral  port  after  their  defeat  in  battle,  and  were 
scuttled  there. 

V.  The  case  of  the  officers  and  crews  of  warships  entering 
neutral  ports  after  their  defeat  in  battle,  such  as  the  Tzesare- 
vich  at  Kiao-chow  Bay,  and  the  Askold  at  Shanghai,  and  the 
Stratni  at  Chefoo.  Also  when  the  neutral  ports  lie  far  be- 
yond the  zone  of  warlike  operations,  is  it  necessary  to  make 
distinctions;  for  example,  the  cases  at  Chefoo  near  the  area  of 
hostilities,  from  those  of  the  Lena  at  San  Francisco,  and  the 
Diana  at  Saigon,  and  the  Terek  at  Batavia? 

Thus  various  questions  arise  according  to  circumstances. 
The  following  table  indicates  the  actual  treatment  during  the 
Russo-Japanese  war: 


Names.  Treatment. 

I  Scuttled  by  her  own  crew. 
The  Variag.  *j  Her  officers  and  crew  were  carried  to  neutral  ter- 

*      ritories  and  there  paroled. 

{Disarmed  at  Shanghai. 
Her  officers  and  crew  were  allowed  to  return  to 
Russia  on  parole. 


The  Diana,  Lena,    i  Disarmed ;  their  officers  and  crews  were  interned 
and  Tzesarevitch.  (      in  neutral  territories. 

Disarmed;    her  officers  and   crew  were  interned 


The  Askold.  \ 

(      on  board. 

The  Bruni.  Stranded.    Detained  at  Hongkong. 

As  will  be  seen,  the  treatment  received  by  the  various  ves- 
sels was  not  the  same,  but  there  are  certain  explanations  for 
this. 

At  the  beginning  of  the  war  the  Japanese  authorities  looked 
upon  the  faithfulness  and  righteousness  of  the  Russians  with 
respect,  and  allowed  officers  and  men  to  be  paroled,  but  after- 
wards the  captain  of  the  Mandjur  broke  his  parole,  leaving 
Shanghai  on  board  the  British  steamer  Nigretia.  Again  the  pa- 
roled officers  and  crew  of  the  Variag  almost  all  entered  the  naval 
service  of  their  country.  Such  incredible  actions  on  the  part 
of  the  Russians  practically  proved  that  the  parole  is  not  reliable 


CHAP.  II.,  SECT.  I.]        GENERAL   OBSERVATIONS.  461 

for  Russians,  and  it  became  necessary  to  intern  belligerents  in 
neutral  ports  during  the  continuance  of  the  war.  And  as  regards 
the  method  of  internment,  when  the  number  of  the  interned 
surpasses  that  of  the  officers  and  crews  of  the  warships  guard- 
ing them  and  the  ports,  it  becomes  difficult  to  preserve  the 
peace  and  security  of  the  territories;  therefore  it  was  decided  to 
put  them  not  into  one  neutral  port  alone,  but  to  separate  them 
in  the  territories  of  neutral  states,  or  to  intern  them  in  their 
own  warships.  Even  when  they  were  thus  disposed  of,  there 
still,  occurred  a  case  of  murder  in  the  Askold,  which  disturbed 
the  ,  tranquillity  of  the  country  in  which  the  vessel  was  in- 
terned. 

The  opinion  is  that  it  is  necessary  to  revise  and  amend  the 
10th  Article  of  "  Agreement  for  the  Adaptation  of  Maritime 
Warfare  to  the  Eules  of  the  Geneva,  Convention,  and  to  in- 
tern the  combatants  of  warships  of  a  belligerent  state  in  one 
or  more  territories,  or  to  intern  them  in  their  own  warships, 
permitting  them  to  disembark  for  short  periods,  in  limited 
numbers. 

In  the  case  of  the  internment  of  the  combatants  in  their 
own  warships,  it  is  natural  that  a  transgressor  should  not  be 
given  an  unusual  immunity,  and  warships  when  they  are  dis- 
armed lose  their  rights  as  warships.  With  regard  to  the  officers 
and  crews  of  the  Russian  warships  at  Shanghai,  Chefoo,  Saigon, 
San  Francisco,  and  Kiao-chau  Bay,  no  mention  is  here  made, 
because  of  a  like  narration  in  the  previous  chapter. 

As  to  the  facts  regarding  the  Variag  at  Chemulpo,  and  the 
Bruni  at  Wai-Haiwei,  the  Chemulpo  incident  presents  many 
interesting  questions  involving  "  The  treatment  of  the  bellig- 
erents rescued  by  neutral  ships/'  which  have  been  discussed  by 
Mr.  Mahan  at  the  First  Peace  Convention.  However,  it  should 
be  noted  that  these  subjects  do  not  belong  to  the  proper  sphere 
of  the  contents  of  this  chapter,  and  a  discussion  here  is  merely 
subsidiary.  With  regard  to  the  officers  and  crew  of  the  Bruni, 
two  views  were  taken;  one  deemed  them  as  those  being  ship- 
wrecked, others  not  so. 


462  NEUTRALITY.  [PART  IV. 

Sect.  II.     Chemulpo  Incident. 

First  a  description  of  the  case  of  the  Variag  at  Chemulpo, 
summarising  the  information  given  by  M.  Pavlow,  the  previous 
Eussian  Ambassador  to  Korea,  may  be  of  moment: 

Feb.  9,  1904,  at  7.30  a.m.,  the  captains  of  the  British  cruiser  Talbot, 
the  French  Pascal,  the  Italian  Elba  and  the  American  Yicksburg,  which 
were  anchored  in  the  harbour  of  Chemulpo,  received  from  Admiral 
Uriu,  the  commander  of  a  Japanese  Squadron  outside  the  harbour, 
public  information  that  diplomatic  relations  were  broken  off  between 
Japan  and  Russia,  and  advising  the  Russians  to  leave  the  harbour, 
telling  them  that  if  they  did  not,  they  would  be  attacked.  Admiral 
Uriu  requested  the  captains  of  the  foreign  warships  to  leave  the 
harbour  before  4  o'clock  p.m.  Thereupon  the  captains  of  the  foreign 
warships  held  a  consultation  on  board  the  Pascal  and  requested  the 
presence  of  Captain  Rudoniyoff,  who  also  received  public  information 
bearing  the  same  purport.  As  a  result  of  these  deliberations  they 
determined  to  protest  against  Admiral  Uriu's  violation  of  the  neu- 
trality of  the  Korean  port.  They,  however,  informed  the  captain  of 
the  Variag  that  they  would  leave  the  port  for  their  own  safety,  if  the 
Russian  warships  did  not  vacate  before  12  o'clock. 

The  captain  of  the  Variag,  however,  determined  to  risk  the  chance 
of  a  lucky  escape  in  case  of  an  engagement  with  the  Japanese  Squadron, 
and  steamed  out  against  it  about  5  miles  off  the  Isle  of  Yodarimo  at 
the  mouth  of  the  harbour.  Just  at  12  o'clock  the  Asama,  the  flagship 
of  Admiral  Uriu,  opened  the  fire  against  the  Variag  and  her  consort 
Koreetz,  which  fought  with  the  Japanese  Fleet  for  about  an  hour.  At 
1  o'clock  p.m.,  the  Russian  warships  returned  in  a  crippled  condition 
and  lay  at  anchor  in  the  harbour  to  examine  the  damages  and  to 
repair  them,  hoping  to  again  engage  with  the  Japanese  Squadron  before 
4  o'clock  p.m.  The  Koreetz  was  seriously  damaged,  and  crowded  with 
wounded  men,  but  her  captain  would  not  surrender  his  ship  to  the 
Japanese,  and  determined  to  blow  her  up  and  scuttle  her,  after  sending 
her  crew  and  wounded  men  on  board  the  British,  French  and  Italian 
warships.  When  at  4  o'clock  the  Koreetz  exploded,  the  Variag  remained 
undisturbed,  but  afterwards  in  accordance  with  the  warning  of  the  for- 
eign captains  that  the  explosion  of  the  Variag  would  be  dangerous  to 
the  neighbouring  warships,  her  guns  and  engines  were  entirely  destroyed, 
and  she  was  set  on  fire. 

The  steamer  Sungari  of  the  Eastern  China  Railway  and  Maritime 
Company,  which   had   entered   the   harbour   on    the  night   before  these 


CHAP.  II.,  SECT.  II.]      CHEMULPO   INCIDENT.  463 

events,  also  was  destroyed  by  order  of  the  captain  of  the  Koreetz,  the 
Koreetz  having  destroyed  herself  after  sending  her  officers  and  crew 
on  board  the  Talbot. 

Thus  three  Russian  vessels  were  sunk  in  one  day.  When,  at  the 
beginning  of  the  incident,  the  Variag  and  Koreetz  steamed  out  against 
the  Japanese  Squadron,  the  British,  French  and  Italian  warships  and 
vessels  deeply  sympathised  with  them,  and  encouraged  them,  especially 
the  Italian  Elba,  the  band  of  which  played  in  their  honour  as  they 
sailed  out.  When  they  had  returned  to  the  harbour,  the  three  foreign 
captains  received  the  Russians  on  board  their  ships  and  treated  them 
with  kindness.  The  captain  of  the  Pascal  saw  Commander  Rudoniyo 
and  his  men  on  board  the  Variag.  The  captain  of  the  United 
States  gunboat  Vicksburg  proposed  to  assist  the  Russians  by  treating 
their  wounded  men,  but  informed  them  that  he  could  not  personally 
receive  the  Russian  officers  and  men  on  board  his  ship  without  an 
order  from  his  Government.  The  captain  of  the  Variag  refused  the 
assistance  of  the  American  captain,  and  all  the  men  of  the  Russian 
warships  were  taken  on  board  the  Pascal,  Talbot,  and  Elba. 

As  to  the  questionable  points  with  regard  to  the  treatment 
of  the  crew  after  this  event,  the  following  communication  was 
published  by  the  Japanese  Government: 

1.  "  Survivors  of  the  Russian  warships  and  vessels  must  be  taken 
-to  Shanghai." 

2.  "  The  Japanese  Government  found  it  necessary  to  make  them 
pledge  themselves  not  to  come  again  to  the  north  of  Shanghai  during 
the  war." 

Afterwards  (Feb.  12th)  the  French  Charge  d' Affaires  in 
Korea  telegraphed  to  the  French  Minister  in  Tokyo  relative 
to  the  French  warship  Guidon's  express  voyage  from  Nagasaki 
to  Chemulpo  to  carry  the  Eussian  survivors  (except  the  se- 
verely wounded  men)  now  on  board  the  Pascal  to  Shanghai, 
according  to  the  request  of  the  Japanese  Government.  And 
he  requested  for  her,  if  possible,  a  certain  proof  of  her  mission, 
lest  the  Japanese  Fleet  should  detain  her  on  her  way  to  Che- 
mulpo. The  Japanese  Government  permitted  it.  The  follow- 
ing, however,  has  been  submitted  as  the  opinion  of  the  Brit- 
ish Minister  to  Korea: 


464  NEUTRALITY.  [PART  IV. 

"  It  is  very  difficult  to  keep  under  strict  control  such  a  large  num- 
ber of  survivors,  as  those  of  Yariag  and  Koreetz  at  Shanghai." 

After  this  we  received  the  following  communication  from  Keijo, 
Korea,  dated  Feb.   19th,   1904. 

"  With  regard  to  the  treatment  of  the  survivors  of  the  Russian 
warships  at  Chemulpo,  it  is  declared  that  the  survivors  of  the  Variag, 
who  were  taken  on  board  the  British  Talbot  are  to  be  interned  in 
British  territory  during  the  continuance  of  the  war,  and  that  they 
are  to  be  carried  by  the  British  warship  AmpMtrite,  which  is  coming 
to  Chemulpo  to  take  them  to  British  territory." 

According  to  a  copy  of  the  list  of  the  survivors  of  the  Russian 
warships,  which  was  signed  by  the  captain  of  the  Talbot,  the  total 
number  of  the  crew  of  the  Variag  on  board  is  275,  including  her 
executive  commander  and  officers.  Besides  these  there  are  on  board 
53,  including  15  Chinese  from  the  Sungari.  All  these  Russians  are 
to  be  carried  by  the  Amphitrite  to  Shanghai,  and  the  British  man-of- 
war  has  to  intern  the  survivors  of  the  Variag  in  Singapore  or  in 
India,  but  to  land  those  of  the  Sungari,  being  properly  non-combatants, 
at  Shanghai  or  other  Chinese  ports. 

Some  Scientific  Questions  proposed  by  U.  S.  Naval  College. 

As  we  know,  the  United  States  Navy  has* come  to  pay  pro- 
found attention  to  the  study  of  International  Law.  The  presi- 
dent of  the  Naval  War  College  at  Newport  asked  various  ques- 
tions about  this  incident. 

Mr.  Takahira  to  Baron  Komura. 
(A  letter  translated  from  the  Japanese.) 

June  8th,   1904. 
Monsieur  le  Ministbe: 

"  I  was  requested  by  Mr.  Rockhill  to  give  a  full  account  of  Chemul- 
po incident  to  the  president  of  the  Naval  War  College  at  Newport, 
U.  S.  A.,  who  entrusted  Mr.  Rockhill  with  a  letter,  given  in  the  fol- 
lowing page,  to  procure  for  him  the  facts  with  regard  to  the  treat- 
ment of  the  rescued  crews  of  the  Russian  warships  by  neutral  war- 
vessels  in  the  harbour  of  Chefoo. 

"  Since  the  beginning  of  the  present  war,  it  is  said  that  professors 
and  students  of  the  college  have  been  studying  the  actions  and  schemes 
of  the  navy  with  much  interest.  It  is  believed  that  they  have  no 
other  purpose  than  that  of  purely  a  scientific  study  of  the  incident, 
and  I  hold  that  it  is  the  best  way  to  show  a  glimpse  of  the  appli- 


CHAP.  II.,  SECT.  II.]      CHEMULPO   INCIDENT.  465 

cations  of  Japan's  naval  strategy,  to  give  a  full  account  of  the  treat- 
ment of  Chemulpo  incident,  and  the  specific  answers  to  the  questions. 
I  shall  be  much  delighted  if  Your  Excellency  will  give  me  your  de- 
tailed information  about  the  incident." 

( Enclosure. ) 

U.  S.  Naval  War  College,  Gdc, 
Newport,  Rhode  Island,  May  7,  1904. 
My  Dear  Rockhill: 

I  shall  be  greatly  obliged  if  you  can  and  will  procure  for  me  from 
some  of  your  friends  in  the  Japanese  Legation,  the  facts  in  relation 
to  the  disposition,  made  of  the  crews  rescued  by  neutral  war  vessels 
from  the  Russian  warships,  when  they  were  abandoned  and  sunk  in  the 
harbour  of  Chemulpo  last  February.  I  should  like  to  get,  specifically, 
answers  to  the  following: 

(a)  Was  any  demand  made  by  the  Japanese  Admiral  for  the  sur- 
render to  him  of  the  rescued  Russians? 

(6)  Were  the  crews  considered  to  have  been  interned  by  the 
neutral  commanders  who  received  them  in  the  manner  prescribed  by 
Art.  LVII.  of  the  Hague  Convention,  July  29,  1899? 

(c)  The  Russians  having  been  permitted  to  return  to  Russia,  it 
is  assumed  that  their  parole  was  taken,  and  if  so,  to  whom  was  this 
parole  given? 

Answers  to  the  questions  were  as  follows: 

{a)  With  regard  to  the  Russian  survivors  rescued  by  neutrals 
from  the  Variag  and  Koreetz,  which  were  sunk  in  the  harbour  of  Che- 
mulpo, the  Japanese  Admiral  made  no  demand  for  their  surrender. 

(b  &  c)  The  survivors  of  the  said  warships,  when  sunk  in  Che- 
mulpo harbour,  were  kept  for  days,  on  board  the  French  Pascal,  the 
British  Talbot  and  the  Italian  Elba,  but  afterwards  the  French,  British 
and  Italian  representatives  in  Korea  conducted  negotiations  with  the 
Japanese  Minister  to  Soul,  in  regard  to  the  disposal  of  survivors,  and 
the  Japanese  Government  assented  to  their  proposals  on  the  following 
conditions : 

(1)  Survivors  shall  be  taken  to  Shanghai. 

(2)  The  Russian  Government  has  to  make  them  pledge  themselves 
not  to  come  again  to  the  north  of  Shanghai. 

Thereupon  the  representative  of  the  French  Government 
certified  by  a  public  document  that  the  Eussians  on  board 
the  Pascal  should  not  be  handed  over  to  any  other  authority 


466  NEUTRALITY.  [PART  IV. 

unless  her  captain  would  get  their  parole  that  they  would  not 
take  part  again  in  hostilities;  and  then  he  handed  over  to  our 
ambassador  a  list  of  the  rescued  Russians,  signed  by  the  cap- 
tain of  the  Pascal,  and  was  allowed  to  start  for  Shanghai,  carry- 
ing 8  officers  and  39  sailors  of  the  Variag  and  9  officers  and  160 
sailors  of  the  Koreetz.  The  representative  of  the  British  Gov- 
ernment also  by  an  official  document  certified  that  the  Russian 
sailors  brought  on  board  the  Talbot  should  be  interned  in  Brit- 
ish territories  during  the  war,  and  hande'd  to  the  Japanese  Min- 
ister a  list  of  the  Russians,  which  was  signed  by  the  captain  of 
the  warship  in  the  same  document,  and  the  Amphitrite  was 
allowed  to  carry  the  Russians,  including  the  executive  com- 
mander of  the  Variag  and  his  men,  to  Hongkong. 

The  Italian  Minister  certified  by  an  official  document  how 
he  would  dispose  of  the  survivors  of  the  Variag,  getting  the 
instructions  of  his  Government  after  sending  them  to  Shanghai, 
and  handed  over  to  the  Japanese  Minister  the  document  with  a 
list  of  the  Russian  survivors,  and  sent  seven  officers  and  one 
hundred  and  ninety-four  sailors  of  the  Variag  by  the  Elba  to 
Shanghai. 

Dr.  Lawrence  criticised  the  protest  of  the  three  captains  of 
the  British,  Italian,  and  French  warships  in  the  harbour  of 
Chemulpo.1     He  said: 

"  The  naval  officer  is  often  combatant,  peacemaker,  diplomatist, 
judge,  and  avenger  in  one.  If  he  finds  himself  suddenly  confronted 
with  an  outbreak  of  what  seems  to  him  unlawful  hostilities,  in  the 
course  of  which  the  lives  and  property  of  his  country's  subjects  are  in 
imminent  danger,  and  it  is  his  duty  to  afford  them  protection  by  every 
means  in  his  power.  And  if  among  such  means  he  includes  a  timely 
protest  against  the  carrying  on  of  warlike  operations  in  a  neutral  har- 
bour, he  would  be  well  within  his  right  in  making  it.  But  in  the  case 
before  us  there  was  no  danger  threatening  British,  French  and  Italian 
subjects  or  their  possessions.    There  was  no  ground  for  the  protest  .  .  ." 

The  author  of  the  present  work  has  the  same  view  with 
his  learned  friend  in  Cambridge,  England. 

1  Lawrence,  War  and  Neutrality  in  the  Far  East,  pp.  75-80. 


CHAP.  II.,  SECT.  III.]      THE   BREACH   OF   PAROLE.  467 

Sect.  III.     The  Breach  of  Parole  by  the  Russian  Officers. 

Most  of  the  Eussian  officers  who  were  set  free  under  pledge 
in  neutral  territories  again  took  service  in  their  navy.  Japa- 
nese authorities  received  the  following  information  at  intervals 
between  the  months  of  April  and  August: 

*  It  is  probably  certain  that  the  captain  of  the  Eussian  gun- 
boat Mandjur  was  drowned  on  board  the  Petroparlovsk  when  she 
sank  outside  of  Port  Arthur.  The  officers  of  the  Mandjur, 
when  disarmed,  it  is  said,  pledged  themselves,  in  the  presence 
of  the  Chinese  authorities,  not  to  take  part  again  in  hostilities 
during  the  war.  It  was  proved  by  General  Decins  that  Captain 
Crown  was  drowned  on  board  the  Petroparlovsh. 

"  According  to  the  Cronstadt  correspondent  of  the  London  Times,  the 
Russian  naval  reserves  have  entered  the  service  by  Imperial  command. 

"  Three  thousand  eight  hundred  and  eighty-eight  men  were  assigned 
to  warships  in  Cronstadt  harbour,  and  the  remainder  were  assigned  to 
the  docks.  An  officer  of  the  Eoreetz  stated  that  both  officers  and  men 
of  the  Koreetz  and  the  Variag  had  taken  service  again." 

These  simple  statements  are  not  sufficient  to  draw  the  read- 
er's attention,  so  the  author  will  narrate  an  interesting  case. 

The  Nigretia  Affair. 

I  have  already  stated  that  the  officers  of  the  Rastoropny, 
Grozovoi,  and  other  warships  were  set  free  on  parole,  but  on 
the  16th  of  December,  1904,  the  following  information  came 
from  Shanghai : 

The  British  steamer  Nigretia  is  reported  to  have  left  here  for 
Vladivostock  to-day  with  a  contractor  for  the  Russian  Army,  and  also 
with  several  of  the  Russian  officers  secretly  escaping  from  the  Russian 
men-of-war  in  this  port,  including  the  captain  of  Grozovoi.  She  is 
proceeding  directly  to  Vladivostock  via  Strait  of  Korea.  The  cargo 
as  shown  by  her  bill  of  lading  is  kerosene,  but  the  circumstances 
looked  very  suspicious. 

On  the  19th  of  December,  1904,  the  British  steamer 
Nigretia,  which  left  Shanghai  on  the  17th  of  December,  and 


468  NEUTRALITY.  [PART  IV. 

which  was  on  her  way  to  Vladivostock,  was  captured  by  H.  M.  S. 
Tsushima  for  carrying  coal.  On  board  the  ship  there  were 
two  passengers  who  called  themselves  Germans,  and  who,  how- 
ever, confessed  that  they  were  respectively  the  captain  and  offi- 
cer of  the  Ratstoropny. 

Hence  our  government  ordered  Mr.  Matsui  at  Peking  to 
advise  the  Chinese  authorities  to  more  strictly  supervise  the 
Eussian  officers.  The  principal  meaning  of  the  letter  writ- 
ten by  Mr.  Matsui,  the  Japanese  Ambassador  in  charge  at 
Peking,  on  the  21st  of  January,  1905,  to  Prince  Ching  is  as 
follows : 

"  Paul  Mihairovich  Plem,  the  captain  of  the  Russian  torpedo- 
destroyer  Ratstoropny,  and  sub-lieutenant  Clergy  Wallen-chi-novich 
Sekyoff  attempted  to  escape  into  Vladivostock  by  the  British  steamer 
Nigretia,  which  put  off  from  the  port  of  Shanghai  on  the  16th  of 
December,  1904,  but  unfortunately  for  them,  was  captured  by  the 
Japanese  warship  Tsushima  far  off  the  coast  of  Urusan,  and  was 
brought  to  the  Prize  Court  at  Sasebo.  They  confessed  the  fact  at  a 
solemn  trial. 

"  Formerly  when  the  captain  of  the  Ryeshitelni  escaped  from  the 
Japanese  internment,  Mr.  Uchida,  the  Japanese  Ambassador  at  Peking, 
following  instructions  from  the  Japanese  Government,  communicated  to 
your  Government  relative  to  the  disposition  of  him,  and  on  your  future 
treatment  of  the  Russians;  and  your  Government  consented  to  his 
proposals  on  the  10th  of  September,  1904.  But  I  believe  the  present 
event  must  have  arisen  from  the  imperfectness  of  your  internment  of 
the  Russians,  therefore,  I  must  advise  Your  Excellency  to  put  them 
under  strict  guard,  and  not  to  repeat  such  a  troublesome  occurrence." 
(Translated  from  Japanese.) 

Now,  to  the  great  surprise  of  all,  there  came  on  the  15th  of 
May,  1905,  the  following  note  from  the  French  Minister  at 
Peking,  who  informed  the  Japanese  authorities  that  the  cap- 
tain of  the  Ratstoropny  and  some  others  insisted  that  they  had 
never  broken  their  parole: 

Le  lieutenant  de  vaisseau  Plenn,  actuallement  prisonnier  de  guerre 
a  Matsuyama,  vient  de  m'adresser  une  requete  en  vue  d'obtenir  sa 
liberation,  en  faisant  valoir  les  raisons  suivantes. 


CHAP.  II.,  SECT.  III.]      THE   BREACH   OF   PAROLE.  469 

II  commandait  le  torpilleur  Ratstoropny  et  apres  l'arrivee  de  ce 
navire  a  Tchefou,  il  dut  signer,  devant  les  autorit6s  Chinoises,  ainsi  que 
ses  officiers  et  son  equipage,  Pengegement  de  ne  plus  prendre  part 
a  la  guerre  actuelle.  Mais  cet  engagement  ne  stipulait  aucune  obli- 
gation de  residence  dans  telle  ou  telle  ville  determinee,  fait  dont  j'ai 
eu  depuis  lors  confirmation  par  un  avis  officiel  du  Ministre  de  France 
a  Peking. 

Un  officier  et  l'equipage  du  Ratstoropny  sont  rested  a  Shanghai, 
tandis  que  le  lieutenant  de  vaisseau  Plenn  et  l'enseigne  Cheveleff  se 
sont  embarques  a  bord  du  steamer  Nigretia  dans  l'intention  de  se 
rendre  a  Vladivostock  et  de  demander  a  leur  admiral  la  permission 
de  rentrer  en  Russie. 

Le  Nigretia  fut  capture  par  la  Flotte  Japonaise,  et  MM.  Plenn 
et  Cheveleff,  qui  se  trouvaient  a  bord  sous  des  noms  d'emprunt,  ont 
6te"  internes  comme  prisonniers  de  guerre.  Bien  que,  peu  de  temps 
apres,  ils  aient  fait  connaitre  leur  veritable  £tat  civil,  ainsi  que  les 
termes  de  l'engagement  souscrit,  ils  ont  §te  maintenus  depuis  quatre 
mois  au  Japon. 

Ils  demandent  done  leur  liberation,  en  se  basant  sur  le  fait  qu'ils 
n'ont  eu  aucune  fagon  viole  leur  serment,  qu'ils  n'6taient  astreints  a. 
aucune  residence  determinee,  et  que  par  suite  ils  avaient  le  droit  de 
se  rendre  a  Vladivostock. 

Je  ne  puis  que  transmettre  a  Votre  Excellence  la  requete  dont  ils 
s'agit.     1. 

The  Japanese  Imperial  Government  soon  ordered  Consul 
Mizuno  at  Chefoo  to  find  out  the  copy  of  the  affidavit  made 
by  the  captain  of  the  Ratstoropny. 

The  answer  of  Mr.  Midzuno  by  a  letter  on  the  following 
morning  is  as  follows: 

The  Case  Referring  to  the  Affidavit  Made  by  the  Officers  and  Crew  of 
the  Russian  Torpedo-Destroyer  Ratstoropny. 
The  affidavit  made  by  the  officers  and  crew  of  the  Russian  torpedo- 
destroyer  Ratstoropny,  which  entered  the  harbour  of  Chefoo  from  Port 
Arthur,  and  was  scuttled  there,  was  kept  by  the  captain  of  the  Chinese 
warship  Kaiyo.  It  was  borrowed  from  him  after  negotiations  with 
Tao-tai,  and  copied  as  on  the  preceding  page.  In  fact,  this  affidavit, 
being  hurriedly  made  on  board  the  Kaiyo  after  they  scuttled  their  boat, 
simply  narrates  that  they  pledged  themselves  to  not  again  take  part 
in  hostilities  during  the   present  war.     However,   though    it   was  not 


470  NEUTRALITY.  [PART  IV. 

specified  by  the  Russians  whether  or  not  they  should  be  set  free,  it  was 
a  matter  of  course  thpt  they  should  not  return  to  Russia,  or  to  go  to 
other  countries  without  the  permission  of  the  Chinese  authorities,  who 
had  not  declared  at  the  beginning  of  the  affair  that  they  should  not 
be  set  free.  As  is  known,  the  following  order  of  the  Chinese  Govern- 
ment was  clearly  stated  in  the  first  page  of  the  first  paragraph  of  the 
first  chapter  (Duties  of  Neutral  Territories)  of  the  "  Manual  of  Neutral 
Public  Law,"  which  was  delivered  to  every  provincial  officer  with  "  The 
Law  of  Neutrality,"  of  the  Chinese  government,  at  the  time  hostilities 
began  between  Japan  and  Russia. 

"  Any  belligerent  warship,  which  has  entered  the  area  of  neutral 
territories  in  consequence  of  her  defeat  in  battle,  shall  be  disarmed  and 
detained  until  the  end  of  the  war." 

Every  provincial  authority  of  China  has  been  managing  affairs 
according  to  this  notice.  So  if  the  treatment  of  the  Ryeshitelni,  which 
was  the  first  ship  to  enter  the  harbour  of  Chefoo,  and  the  Ratstoropny, 
which  was  the  third,  and  of  the  officers  and  crews  of  the  Russian  war- 
ships entering  Shanghai  is  taken  into  consideration,  it  will  be  observed 
how  obedient  provincial  authorities  were  to  the  orders  of  their  Govern- 
ment. They  interned  the  Russians  under  pledge  that  they  should  not 
again  take  part  in  hostilities  during  the  war,  and  were  not  pleased  to  set 
them  free.  Now  with  regard  to  the  officers  and  crew  of  the  Ratstoropny, 
as  it  was  inconvenient  and  gave  some  annoyance  to  keep  order  on 
the  Kaiyo,  to  detain  a  large  number  of  the  Russians  on  board  her,  the 
Taotai  reported  her  condition  to  the  Chinese  Department  for  Foreign 
Affairs,  while  requesting  consent  to  carry  them  to  Shanghai.  The 
Shanghai  Taotai,  getting  the  agreement  of  the  Government  to  which 
the  Japanese  Minister  gave  consent,  sent  the  Russians  to  Shanghai 
by  the  Kaiyo,  and  removed  them  on  board  the  Russian  warships,  and 
interned  them  there.  The  principle  of  the  Chinese  Government  is  not 
changed;  moreover,  the  Taotai  proved  that  it  had  no  intention  to  set 
them  free  by  carrying  them  from  Chefoo  to  Shanghai,  when  communi- 
cation was  had  with  the  Government  in  regard  to  copying  their  parole. 

The  form  of  the  parole  was  as  follows : 

The  captain,  officers  and  crew  of  the  Russian  torpedo  boat  Rats- 
toropny agree  and  pledge  themselves  to  not  re-engage  in  the  present 
war  between  Japan  and  Russia. 

Captain  of  the  Russian  torpedo  boat  Ratstoropny, 
Lieutenant  Aleen. 

4-17  November,  1904. 


CHAP.  II.,  SECT.  III.]      THE   BREACH   OF   PAROLE.  471 

Still  the  Japanese  Government,  for  sake  of  caution,  tele- 
graphed to  Consul  Odagiri  at  Shanghai  to  ascertain  whether 
the  Kussian  captains  had  left  there  with  the  permission  of 
the  Shanghai  Taotai  or  not,  and  heard  the  truth  that  no  con- 
sent had  been  given  by  the  Taotai  to  the  Russians  to  leave 
Shanghai. 

Then  it  is  true  that  the  Eussian  captains  escaped  from 
Shanghai,  unperceived  by  the  Chinese  authorities  who  were  tak- 
ing charge  of  them.  So  they  evidently  broke  their  parole.  If 
they  wanted  to  cover  their  real  intentions  on  the  pretext  of 
lacking  a  staying  place  in  the  parole,  it  undoubtedly  proved  the 
lowness  of  their  character.  Therefore,  on  the  first  of  June, 
1905,  the  Japanese  Imperial  Government  replied  to  the  French 
Ambassador  as  follows: 

The  Russian  prisoner,  Lieutenant  Plenn,  who  has  been  interned  in 
the  Matsuyama  garrison,  has  petitioned  to  be  set  free  with  his  com- 
panion, Sub-lieutenant  Shuvloff.  It  is  true,  however,  that  they  pledged 
themselves  at  Chefoo  not  to  take  part  in  hostilities  again  during  the 
continuance  of  the  war;  and,  properly  speaking,  both  being  the  Russian 
naval  officers  who  escaped  to  Chinese  province,  they  should  be  kept  there 
in  honourable  detention  under  neutral  guardianship.  Hence,  though 
there  was  no  particular  statement  about  their  residence  in  their  parole, 
they  were  not  allowed  to  go  to  any  other  place. 

Moreover,  when  they  were  carried  to  Shanghai  with  the  consent  of 
our  Government,  the  captain  of  the  Mandjur,  who  was  to  take  them  on 
board  his  ship  according  to  the  document  signed  by  the  Russian  Consul, 
warranted  that  he  would  not  send  them  to  any  other  place  without  the 
permission  of  the  Chinese  authorities. 

In  spite  of  this,  disguising  themselves  as  civilians,  without  the  per- 
mission of  the  Chinese,  they  got  on  board  the  British  steamer  Nigretia, 
and  tried  to  escape  into  Vladivostock;  but,  unfortunately,  on  the  way 
were  captured  by  H.  M.  S.  Tsushima.  Therefore  they  may  be  properly 
made  the  prisoners  of  Japan,  and  their  requests  are  of  course  inadmis- 
sible. I  shall  be  much  obliged  to  you  if  Your  Excellency  will  kindly 
communicate  the  will  of  our  Government  to  them  in  any  way  you  please. 

Another  Instance  of  the  Violation  of  Parole. 

On  the  12th  of  March,  1905,  an  official  despatch  from  the 
front  reached  the  Japanese  Government  as  follows: 


472  NEUTRALITY.  [PART  IV. 

Russian  Officer  Violates  His  Parole. 

One  of  the  Russian  officers,  late  of  Port  Arthur,  who  had  pro- 
ceeded to  Sinmintun  from  Shanghai  in  violation  of  his  oath,  has  been 
arrested  by  our  garrison.  We  have  also  captured  a  certain  amount  of 
supplies  which  were  being  conveyed  to  the  Russian  Army. 

The  following  view  held  by  the  best  newspaper  in  Japan, 
the  Jiji,  is  worthy  of  mention: 

It  is  beneath  contempt  that  this  man,  who  on  the  pledge  of  his 
honour  promised  to  remain  strictly  true  to  his  oath,  which  he  had 
taken  as  much  toward  the  Imperial  Government  as  toward  his  own, 
should  have  violated  his  pledge,  and  secretly  smuggled  himself  from 
Shanghai  to  the  battlefield,  besides  taking  with  him  war  supplies 
for  the  Russian  Army.  The  matter  may  only  be  interpreted  in  the 
sense  that  Russia  has  purposely  violated  that  clause  of  The  Hague 
stipulations  which  makes  it  obligatory  to  the  signatory  Powers  not 
to  force  their  subjects  to  undertake  any  act  contrary  to  the  oath  in 
virtue  of  which  they  are  liberated,  after  being  made  prisoners  of  war. 
At  any  rate,  this  is  not  the  first  time  that  Russian  officers  have  com- 
mitted perjury,  as  in  the  cases  of  the  commanders  of  the  Ryeshitelni 
and  the  Grozov,  who,  both  imposing  on  the  credulity  of  their  Chinese 
custodians,  absconded  from  Shanghai;  and  it  is  imaginable  that  there 
are  many  instances  of  Russian  officers  and  men  unlawfully  freeing 
themselves.  In  the  case  of  these  absconders,  it  may  be  said,  however, 
they  were  actuated  by  merely  personal  motives;  but  in  the  present 
case,  seeing  that  the  offender  had  in  his  possession  things  serviceable 
to  the  Russian  Army,  he  may  only  be  regarded  as  having  acted  in 
accordance  with  the  orders  of  the  Russian  Government.  In  that  event, 
all  that  can  be  said  is  that  Russia,  in  that  fell  act,  has  forfeited  all 
claims  to  honour,  to  say  nothing  of  the  depravity  of  the  person  con- 
cerned. Under  the  circumstances,  it  is  conceivable  that  there  are 
other  Russian  officers  who  had  belonged  to  the  Port  Arthur  garri- 
son, and  are  now  in  Manchuria  in  defiance  of  their  own  pledge. 
These  perjurers,  if  recaptured,  should  no  longer  be  treated  as  pris- 
oners of  war,  but  should  be  court-martialled  and  rigorously  pun- 
ished. At  the  same  time,  as  the  conduct  of  such  offenders  consti- 
tutes the  violation  of  The  Hague  agreement,  our  Government  should 
take  immediate  steps  to  acquaint  the  signatory  Powers  with  Russia's 
treachery  and  faithlessness.  Furthermore,  under  no  circumstances 
whatever  should  liberation  under  oath  be  granted  to  Russian  com- 
batants, no  matter  whether  they  be  officers  or  men.     The  Russian  offi- 


CHAP.  II.,  SECT.  IV.]      THE   BLUNI   INCIDENT.  473 

cers  at  Port  Arthur  were  by  the  special  consideration  of  our  illustrious 
sovereign  granted  the  most  honourable  treatment  possible  under  the 
circumstances  in  which  they  were  placed,  and  it  was  hoped  that,  even 
though  they  were  Russians,  they,  on  their  part,  would  endeavour  to 
retain  their  soldiery  spirit.  But  the  vainness  of  hope!  Let  the  world 
know  that  the  canker  worm  of  perfidy  has  eaten  into  the  heart  of 
Russia  and  Russians,  there  remaining  nothing  but  faithlessness  about 
them. 


Sect.  IV.  The  Russian  Torpedo  Destroyer  Bluni,  Stranded 
at  Wei-hai-wei. 

On  Aug.  11,  1904,  the  Russian  torpedo  destroyer  Bluni  was 
stranded  about  20  miles  distant  from  Wei-hai-wei,  and  by 
efforts  of  her  commander,  who  reached  Wei-hai-wei  on  the 
12th,  was  rescued  by  the  British  warship  H umber.  Her  crew, 
60  in  number,  were  placed  on  board  British  torpedo  boats.  On 
Sept.  10  the  report  was  sent  in  that  the  crew  of  the  Russian  tor- 
pedo destroyer  detained  at  Wei-hai-wei  were  to  be  forwarded 
to  Hongkong.  By  that  time  the  French  Minister  made  a  de- 
mand on  the  Japanese  Minister  to  restore  the  crew. 

The  view  held  by  Japan  concerning  the  matter  was  as  fol- 
lows : 

"  Now  that  the  despatch  of  the  Baltic  Fleet  may  turn  out  to  be  a 
fact,  it  is  absolutely  necessary  for  us  to  prevent  the  Russian  Navy  from 
being  restored  any  of  its  lost  efficiency.  Therefore  our  Government 
decided  to  have  all  the  crews  of  the  Russian  war-vessels  disarmed  at 
neutral  ports  detained  within  the  respective  neutral  territories,  in  com- 
pliance with  which  desire  the  United  States  of  America,  France,  Ger- 
many, and  China  have  acted. 

"  We  hope  that  the  British  Government  also  will  take  a  similar  step 
at  Hongkong.  Although  some  may  allege  that  Russian  bluejackets  at 
Wei-hai-wei  were  compelled  to  go  there  by  shipwreck,  and  required  treat- 
ment different  from  others,  still  it  is  undeniable  that  the  recent  naval 
engagement  was  the  very  cause  that  brought  them  to  that  locality." 

Later  on,  granting  Japan's  request,  the  British  Government 
managed  to  have  the  Russians  in  question  interned  in  the  in- 
terior of  Queen  Park  at  Koolong. 


474  NEUTRALITY.  [PART  IV. 

The  British  Government  issued  at  Hongkong  the  follow- 
ing disciplinary  regulations  regarding  the  Russian  crew: 

Rules  Regulating  the  Place  of  Detention  of  Belligerent  Combatants 
in  the  Course  of  the  Russo-Japanese  War. 
Now  that  the  two  states  of  Russia  and  Japan  are  unfortunately  en- 
gaged in  hostilities,  combatants  of  either  belligerent  do  and  may  seek 
refuge  under  the  jurisdiction  of  the  British  Empire,  come  and  may  come 
into  our  settlement  or  its  territorial  waters,  so  that  for  convenience 
sake  the  Governor  of  Hongkong,  with  the  consent  of  his  legislative  de- 
partment, issues  the  following  rules  regulating  the  place  of  detention 
for  these  fugitives: 

GOVERNMENT  NOTIFICATION.— No.  639. 
His  Excellency  the  Governor  has  given  his  assent,  in  the  name  of 
and  on  behalf  of  His  Majesty,  to  the  following  Ordinance  passed  by  the 
Legislative  Council: 

Ordinance  No.  7  of  1904. — An  Ordinance  to  regulate  the  Intern- 
ment of  Refugees  belonging  to  the  Russian  and  Japanese  forces. 

By  Command, 

F.  H.  May, 
Colonial  Secretary. 
Colonial  Secretary's  Office,  Hongkong,  16th  September,  1904. 

No.   7   of    1904. 

An   Ordinance  to   Regulate   the   Internment   of  Refugees  Belonging   to 

the  Russian  and  Japanese  Forces. 

T  S 

M.  Nathan,  Governor. 

15th  September,  1904. 

Whereas  a  state  of  war  unhappily  exists  between  Russia  and 
Japan;  and  whereas  the  United  Kingdom  is  on  terms  of  amity  with 
both  these  countries;  and  whereas  persons  belonging  to  the  belligerent 
forces  have  sought  and  may  seek  refuge  under  the  jurisdiction  of  the 
British  crown,  and  have  come  and  may  come  within  the  Colony 
or  the  waters  thereof;  and  whereas  it  is  expedient  that  regulations 
should  be  made  respecting  the  internment  of  such  persons  during  the 
continuance  of  the  said  war; 

Be  it  enacted  by  the  Governor  of  Hongkong,  with  the  advice  and 
consent  of  the  Legislative  Council  thereof,  as  follows: 

Short  Title. 
1.     This   Ordinance   may   be   cited   as  the   "  Internment   of   Refugee 
Combatants  Ordinance,"  1904. 


CHAP.  II.,  SECT.  IV.]      THE   BLUNI   INCIDENT.  475 

Interpretation  of  Terms. 

2.  For  the  purposes  of  this  Ordinance  the  expression  "  to  intern  " 
means  to  confine  anywhere  within  the  Colony  or  the  waters  thereof, 
and  the  expression  "  interned  person "  means  any  person  ordered  by 
the  Governor  to  be  so  confined. 

Power  to  Intern. 

3.  It  shall  be  lawful  for  the  Governor  to  intern  during  the  con- 
tinuance of  the  present  war  between  Russia  and  Japan,  any  person 
belonging  to  the  forces,  naval  or  military,  of  either  belligerent,  who 
shall  seek  refuge  under  the  jurisdiction  of  the  British  crown,  and  shall 
come  or  be  within  the  Colony  or  the  waters  thereof.  Any  person  be- 
longing to  the  said  forces  found  within  the  Colony  or  the  waters 
thereof  during  the  continuance  of  the  said  war  shall,  unless  the  con- 
trary is  proved,  be  deemed  to  be  a  person  seeking  refuge  as  aforesaid. 

Poioer  to  Make  Regulations. 
.4.  It  shall  be  lawful  for  the  Governor-in-Council,  from  time  to 
time  as  he  shall  think  fit,  to  make,  rescind  and  vary  regulations  for 
the  purposes  of  prescribing  the  place  and  conditions  of  internment, 
of  maintaining  order  and  discipline  among  the  interned  persons,  and 
for  providing  penalties  for  the  breach  of  the  said  regulations.  All 
regulations  made  under  this  Ordinance  shall  be  published  in  the 
Gazette,  and  shall  thereupon  become  as  valid  as  if  inserted  in  this 
Ordinance. 

Penalties  for  Interned  Person  Attempting  to  Escape,  Etc. 

5.  Any  interned  person  who  shall  escape  and  be  recaptured,  or 
shall  attempt  to  escape,  or  shall  conceal  himself,  shall  be  liable,  on 
conviction  before  a  magistrate,  to  imprisonment  with  or  without  hard 
labour  for  any  term  not  exceeding  the  period  of  internment. 

Penalties  for  Assisting  an  Interned  Person  to  Escape,  Etc. 

6.  Anyone  who  assists  or  procures,  or  attempts  to  procure  an  in- 
terned person's  escape,  or  who  conceals  an  interned  person,  or  who 
assists  an  interned  person  to  conceal  himself,  shall,  on  conviction  before 
a  magistrate,  be  liable  to  a  fine  not  exceeding  one  thousand  dollars,  or 
to  imprisonment  with  or  without  hard  labor  for  a  term  not  exceeding 
one  year,  or  to  both. 

Power  to  Search  Premises  and  Vessels. 

7.  It  shall  be  lawful,  in  the  event  of  the  escape  of  an  interned 
person,  for  any  British  naval  or  military  officer,  or  any  police  officer 
of  the  Colony,  having  reasonable  ground  for  suspecting  that  such  in- 


476  NEUTRALITY.  [PART  IV. 

terned  person  is  in  any  premises  within  the  Colony,  or  on  board  any 
vessel  (not  being,  or  having  the  status  of,  a  vessel  of  war)  within  the 
Colonial  waters,  to  search  the  said  premises  or  vessel  without  a  war- 
rant, and  to  take  back  such  interned  person,  if  found,  to  the  place  of 
internment. 

Operation  of  Ordinance. 
8.     Save  in  respect  of  penalties,  this  Ordinance  shall  be  deemed  to 
operate  retrospectively  as  from  the  commencement  of  the  said  war. 

Passed  the  Legislative  Council  of  Hongkong,  this  15th  day  of  Sep- 
tember,  1904. 

S.  B.  C.  Ross, 
Clerk  of  Councils. 
Assented  to  by  His  Excellency  the  Governor,  the  15th  day  of  Sep- 
tember,  1904. 

F.  H.  May, 
Colonial    Secretary. 

Sect.  V.     The  Shanghai  Murder  Case. 

There  was  scarcely  a  warship  which  caused  more  trouble 
than  the  Ashold.  It  was  this  ship  that  barely  consented  to  be 
disarmed,  and  endeavoured  to  repair  herself,  so  that  it  was  re- 
ported, not  without  foundation,  that  she  intended  to  escape  from 
Shanghai  to  join  the  Baltic  Fleet.  And  it  was  her  crew  that 
caused  *  The  Shanghai  Murder  Case." 

The  Shanghai  Mercury  of  the  15th  inst.  gives  particulars  of  the 
affair,  as  follows: 

"  At  about  4.20  p.m.  to-day  a  terrible  crime  was  committed  on  the 
Nanking  Road  Jetty.  A  ricksha  coolie  had  been  carrying  a  Russian 
sailor  belonging  to  the  cruiser  Askold  all  the  afternoon  and  when  they 
arrived  at  the  Nanking  Road  Jetty,  the  sailor  alighted,  and  started 
away  without  paying  his  fare.  The  puller  followed  the  man  on  to 
the  pier,  demanding  his  fare.  When  just  behind  Sir  Harry  Parkes' 
statue  a  native  carpenter  who  was  employed  making  repairs  to  the 
jetty  came  up  to  the  two  men  and  started  to  explain  matters  to  the 
Russian,  who,  without  any  warning,  seized  an  adze  which  the  car- 
penter had  in  his  hand,  and  aimed  a  terrific  blow  at  the  ricksha 
coolie.  It  missed  the  coolie,  and  struck  another  native  who  was 
passing  by,  splitting  the  unfortunate  man's  head  open.  The  poor  man 
fell  to  the  pavement,  weltering  in  his  blood  and  brains.  The  sailor, 
after    dealing    the  dastardly   blow,    started   to  run    away,  making    for 


CHAP.  II.,  SECT.  V.]      SHANGHAI   MURDER   CASE.  477 

the  end  of  the  jetty,  followed  by  a  comrade.  Three  Sikh  policemen, 
who  had  fortunately  seen  the  affair,  gave  chase  to  the  assassin  and 
caught  him  before  he  managed  to  secure  a  sampan,  which  he  was  evi- 
dently in  search  of.  The  companion  gave  himself  up  without  any 
trouble,  but  the  one  that  struck  the  native  offered  a  terrific  resist- 
ance to  the  police;  and  it  was  only  after  a  severe  struggle  that  the 
policemen  managed  to  overpower  him  and  take  him  and  his  friend  to 
the  Central  Police  Station.  The  wounded  man  was  placed  in  an  am- 
bulance and  taken  to  the  Shantung  Road  Hospital  where  everything 
possible  was  done  for  him;  but  the  case  was  hopeless  and  his  death  is 
only  a  matter  of  a  few  hours." 

Commenting  editorially  on  the  above  the  paper  says:  "The  brutal 
and  unprovoked  murder  committed  by  the  sailor  belonging  to  the  Rus- 
sian cruiser  Askold,  of  which  an  account  is  given,  emphasises  the  pro- 
test lodged  by  the  Japanese  Consul  and  the  municipal  council  against 
these  drunken  and  undisciplined  men  being  allowed  to  roam  through 
the  streets  of  the  settlements  at  their  own  sweet  will.  This  is  a  ques- 
tion which  the  consuls  should  immediately  take  up.  The  terms  on 
which  the  crews  of  the  Russian  warships  are  held  here  demand  that 
they  should  be  confined  on  board  their  vessels  and  that  necessary  exer- 
cise should  only  be  taken  under  the  supervision  of  their  officers  in 
a  place  specially  set  apart  for  that  purpose.  The  consular  body  should, 
therefore,  insist  that  these  conditions  be  strictly  fulfilled.  We  hope  the 
Russian  Consul  will,  for  his  own  credit,  see  that  the  prisoner  is  tried 
in  public,  and  not  sent  on  board  his  vessel,  otherwise  the  public,  and 
especially  the  Chinese,  will  not  believe  that  justice  has  been  done." 

The  same  paper  of  the  16th  inst.  says:  For  some  time  past  the 
sailors  belonging  to  the  various  Russian  warships  now  in  port  have 
been  coming  ashore  to  the  international  settlement  in  large  numbers, 
there  never  being  less  than  forty  or  fifty  men  on  leave  at  one  time. 
Immediately  on  arriving  on  this  side  of  the  river  they  have  made 
for  resorts  in  the  Hongkew  district,  principally  in  the  Boone  and 
Fearon  Roads.  Here  all  sorts  of  unseemly  orgies  have  been  indulged 
in,  the  men  getting  hopelessly  drunk,  fighting  among  themselves,  in- 
sulting passersby,  etc.  Patrols  who  have  been  sent  ashore  to  look  after 
these  drunken  men,  instead  of  doing  their  duty  and  maintaining  order 
among  the  brawlers,  have  themselves  got  so  intoxicated  that  they  have 
become  quite  helpless.  After  creating  a  reign  of  terror  in  the  dis- 
trict, the  semi-intoxicated  men  engage  rickshas,  usually  taking  those 
having  only  one  license,  that  is  for  the  English  Settlement.  On  get- 
ting to  the  Yangkingpang  Creek  they  jump  out  of  their  rickshas  and 
cross  over  to  the  French  concession  without  paying  the  poor  ricksha 
pullers,   who   not   having   a    French   license   are    unable    to   cross   the 


478  NEUTRALITY.  [PART  IV. 

boundary  after  their  fares.  If,  however,  one  of  them  is  daring  enough 
to  cross  over  he  is  greeted  with  a  shower  of  abuse  and  not  infrequently 
beaten  for  his  pains  by  the  rowdy  sailors,  who  after  defrauding  the 
coolies  of  their  rightful  due,  get  into  their  steam  launch  and  go  on 
board  their  vessels  rejoicing.  The  police  of  both  the  settlements  have 
been  powerless  to  restrain  the  men  when  they  come  ashore,  and  if 
one  of  them  is  arrested  and  taken  before  his  consul,  he  is  sent  on 
board  his  ship  and  that  is  the  last  of  the  affair,  complainants  who  have 
come  to  grief  through  their  carryings  on,  it  is  stated,  not  receiving 
any  satisfaction  whatever. 

The  Chinese  Government  requested  the  extradition  of  the 
criminals.  The  following  are  the  details  as  they  appeared  in 
the  Shanghai  paper: 

A  telegram  received  by  the  Jiji,  dated  the  20th  inst.,  states  that 
the  Chinese  from  Ningpo,  who  are  resident  at  Shanghai,  have  collected 
funds  for  the  engagement  of  a  foreign  counsel  in  connection  with  the 
prosecution  of  the  Russian  bluejacket  who  recently  murdered  a  Chinese 
named  Cheu  Shang-yin.  They  have  also  petitioned  the  Taotai  that 
steps  be  taken  to  examine  the  culprit  at  the  foreign  settlement  at 
Shanghai  and  not  on  board  the  Askold,  as  is  intended  by  the  Russians. 
The  Taotai  has  accordingly  requested  the  Russian  Consul  to  hand  over 
to  the  Chinese  authorities  the  two  Russian  bluejackets  implicated  in 
the  affair,  in  order  that  the  men  may  be  tried  by  the  Shanghai  dis- 
trict magistrate. 

The  captain  of  the  Askold  declined  to  try  the  case  on  board 
the  ship,  and  handed  over  the  criminals  to  the  Eussian  Consul 
at  Shanghai,  but  he  did  not  extradite  them  to  the  Chinese  au- 
thorities. On  the  contrary  he  published  the  following  notice  in 
Shanghai  papers: 

"  The  Eussian  bluejacket  who  fatally  wounded  a  Chinese  on 
the  15th  ult.  will  be  examined  by  a  special  court,  to  be  opened 
at  Shanghai,  according  to  special  instructions  received  from 
the  Eussian  Government ;  this  exception  to  the  general  rules  and 
public  law  of  Eussia,  according  to  which  the  offender  must  be 
delivered  to  Eussia  for  punishment,  being  due  to  the  unusual 
circumstances  which  preclude  the  delivery  of  the  accused  to  Eus- 
sia.    Admiral  Eeizenstein,  having  received  the  commission  to 


CHAP.  II.,  SECT.  V.]      SHANGHAI   MURDER   CASE.  479 

carry  out  a  preliminary  examination  of  the  criminal,  appoints 
the  following  court:  presiding  judge,  Commander  D'Essai, 
senior  officer  of  the  Askold;  associate  judges,  Lieutenants  Gro- 
din,  Kondrazy,  and  Ekhimoff,  Sub-Lieutenants  Oldosky  and 
Honaievsky;  clerk,  Sub-Lieutenant  Mezedeff.  The  court  will 
be  opened  at  10  a.m.  to-morrow  at  the  Eussian  Consulate.  The 
public  will  be  admitted." 

The  Russian  Consul  also  invited  the  Shanghai  Tao-tai  to 
come  to  the  court  as  one  of  the  auditors. 

The  following  is  the  detailed  account  made  by  the  Tao-tai: 

What  the  Russian  Consul  at  Shanghai  Insisted  Upon. 

According  to  Art.  II.  of  the  Revised  Treaty  between  Russia 
and  China,  Russian  criminals  must  be  sent  back  to  Russia 
and  tried  there.  There  is  no  agreement  to  open  a  special  court 
by  mixed  judges.  Now,  in  the  present  case,  as  it  is  in  time  of 
war  with  Japan,  there  are  no  easy  means  to  send  criminals 
back  to  Russia,  so  the  Russian  Government  decided  to  try  the 
case  at  Shanghai,  and  for  that  purpose  ordered  the  captain  and 
officers  of  the  Askold  to  act  as  judges. 

What  the  Chinese  Authorities  at  Shanghai  Insisted  Upon. 

In  Art.  III.  of  the  Ten-tsin  Treaty  between  Russia  and 
China,  the  words  " mixed  judgment"  are  used.  So  it  is  quite 
unfair  to  say  that  there  is  no  agreement  concerning  a  mixed 
court.  Moreover,  it  must  be  noticed  that  the  Russian  warships 
are  now  interned  in  Shanghai,  and  during  the  internment  sev- 
eral regulations  were  made  by  the  Chinese  authorities,  i.e.,  the 
crew  of  the  Russian  ships  were  under  Chinese  jurisdiction  dur- 
ing the  time  of  war.  The  ordinary  treaty  does  not  apply  to 
the  members  of  the  interned  crews.  Even  if  the  matter  came 
under  the  ordinary  treaty,  it  must  be  decided  by  the  mixed 
court.  Why,  then,  could  not  the  case  in  question  have  been 
tried  by  the  Chinese  authorities  ? 

The  Shanghai  Tao-tai  sent  a  telegram  to  Wai-wu-pu,  the 
Chinese  Foreign  Office,  asking  to  open  a  mixed  court,  and  the 
Wai-wu-pu  requested  the  Russian  Minister  at  Peking  to  do  so, 
but  the  latter  would  not  consent.     Hereupon  the  Chinese  Gov- 


480  NEUTRALITY.  [PART  IV. 

eminent  gave  instructions  to  the  Chinese  Minister  at  St.  Peters- 
burg to  demand  the  extradition  of  the  Kussian  criminals,  and 
at  the  same  time  asking  Eussia  to  agree  in  issuing  the  follow- 
ing regulations  relating  to  the  interned  crew: 

(1)  That  the  views  of  the  Taotai  shall  be  final  in  all  matters  re- 
lating to  the  protection  of  the  Russians;  (2)  that  no  Russians  shall 
be  allowed  to  walk  out  freely,  except  for  exercise  on  the  open  space 
at  the  pier  of  the  Chinese  Eastern  Railway  Company;  (3)  that  China 
shall,  without  the  interference  of  the  Russian  authorities,  have  power 
to  try  those  Russians  who  may,  in  violation  of  China's  neutrality, 
attempt  to  escape  and  are  arrested;  (4)  that  the  Taotai  shall  be 
entitled  at  any  time  to  visit  the  Russian  warships  and  examine  the 
number  of  the  Russians  on  board;  (5)  that  the  Taotai  shall  also  ba 
authorised  to  despatch  the  customs  authorities  or  naval  and  mili- 
tary officers  to  the  Russian  vessels  in  order  to  see  if  the  Russians, 
in  spite  of  their  obligations,  are  coaling,  or  refitting,  or  taking  in 
war  material;  (6)  that  the  Taotai  shall  be  authorised  to  request  the 
doyen  of  the  foreign  consuls  at  Shanghai  to  order  the  settlement  police 
to  arrest  any  defaulting  Russians  seen  in  the  settlement;  (7)  that  an 
interpreter  shall  be  despatched  to  Shanghai  from  Peking  in  order  to 
assist  in  the  negotiations  which  may  arise  between  the  Chinese  and 
Russian  authorities. 

While  the  negotiations  between  the  Chinese  Minister  at  St. 
Petersburg  and  Eussia  were  going  on,  the  Eussian  Consul  at 
Shanghai  opened  the  court  as  it  had  been  advertised,  and  gave 
judgment  in  the  case. 

The  detail  is  as  follows: 

Public  Degradation  of  the  Culprit. 

The  N.-C.  Daily  News  of  the  18th  inst.,  says: 

The  special  tribunal  convened  for  the  trial  of  the  Russian  sailors 
Ageef  and  Diak  again  assembled  at  the  Russian  Consulate  on  the  17th 
inst.  to  pronounce  their  final  judgment  against  the  accused.  The 
judgment,  which  has  received  the  admiral's  sanction,  has  been  cour- 
teously handed  to  us,  as  follows: 

"  The  sentence  passed  by  the  Special  Court  upon  Terente  Ageef,  1st 
Class  fireman  of  His  Imperial  Russian  Majesty's  cruiser  Aslcold,  and 
Jacob  Diak,  sailor  of  the  2nd  class  of  the  same  cruiser,  by  the  special 
commission  appointed  by  Rear- Admiral  Reitsenstein  and  consisting  of 
the  following  members: 


CHAP.  II.,  SECT.  V.]      SHANGHAI   MURDER   CASE.  481 

"Commander  Teshe,  chief  officer  of  the  Askold  (President);  Lieu- 
tenant Brovzyn,  Mandraji,  Eximoff,  and  Sub-Lieutenant  Ordovsky- 
Tansievsky;  Sub-Lieutenant  Medvedeff,  Secretary;  and  confirmed  by 
the  Admiral  in  the  following  order: 

"  I  confirm  and  order  the  commander  of  the  cruiser  Askold  to  fulfil 
the  sentence,  according  to  the  judgment  which  was  as  follows: 

"  The  court,  taking  into  consideration  all  the  circumstances,  de- 
cides that  the  lst-class  fireman  Terente  Ageef  has  to  lose  all  his 
rights  and  privileges,  and  to  be  transported  for  four  years  with  hard 
labour. 

"  And  as  it  is  impossible  to  transport  him  at  the  present  time  to 
Russia,  he  shall  be  imprisoned  in  the  French  Municipal  gaol  for  the 
time  being. 

"Diak,  of  the  same  cruiser  Askold,  has  been  brought  before  the 
court  only  through  the  exceptional  circumstances,  and  as  it  is  clearly 
found  by  the  court,  that  he,  the  second-class  sailor  Diak,  did  not 
offend  but  simply  disobeyed  the  orders  of  the  police,  and  taking  into 
consideration  his  good  conduct  and  service,  and  his  perfect  military 
service,  for  which  he  was  decorated  with  the  Fourth  Order  of  St. 
George,  I,  by  virtue  of  the  power  given  to  me,  forgive  his  fine. 

"  ( Signed )     Rear- Admiral  Reitsen  stein." 

The  accused  were  again  present  in  charge  of  a  strong  guard  of  Rus- 
sian sailors.  The  President  of  the  Court  read  out  the  judgment  in 
Russian  and  immediately  afterwards  the  gist  of  it  was  translated  to 
Inspector  Matheson  in  order  that  his  interpreter  might  translate  it 
to  the  Chinese  present  in  court.  When  this  had  been  done,  Diak  was 
released,  and  then  some  members  of  the  naval  guard  stepped  up  to 
Ageef  and  proceeded  to  strip  him  of  the  badges  of  his  rank.  A  medal 
on  his  right  breast  was  taken  away,  his  brass  buttons  and  shoulder 
straps  were  ripped  off,  and  the  badge  and  riband  on  his  cap  were  re- 
moved. Ageef  seemed  to  feel  his  position  very  keenly,  and  though  he 
submitted  to  this  degradation  quietly  the  unwonted  pallor  of  his 
features   showed    how  he  was   suffering. 

Ageef  was  then  handed  over  to  two  of  the  French  police,  who  were 
in  plain  clothes.  He  was  hurried  out  of  Court  into  a  carriage  which 
was  in  waiting  and  driven  rapidly  away  to  the  French  gaol,  where 
he  is  to  serve  his  sentence. 

The  Russian  authorities  evidently  feared  a  hostile  demonstration 
on  the  part  of  the  Chinese,  as  immediately  after  Ageef  had  left,  a 
guard  of  about  thirty  sailors  was  drawn  up  in  the  doorway  of  the 
Consulate.  The  police,  however,  had  taken  all  precautions,  and  there 
were  very  few  natives  in  the  vicinity.     When  it  became  evident  that 


482  NEUTRALITY.  [PART  IV. 

no  hostile  Chinese  were  at  hand,  the  guard  formed  up  and  marched 
to  the  nearest  jetty,  where  the  sailors  embarked  to  get  to  their  vessel 
on  the  Pootung  side. 

H.  E.  Sheng  Kung-pao  and  Mr.  Kleimenoff,  the  Russian  Consul- 
General,  had  an  interview  on  the  17th  inst.  which  lasted  four  hours, 
during  which  the  question  of  the  trial  of  Ageef  was  thoroughly  dis- 
cussed. The  dissatisfaction  of  the  Ning-po  men  here  arises  from  the 
fact  that  no  Chinese  official  was  present  at  the  recent  court-martial, 
and  that  some  of  the  Chinese  witnesses  who  saw  the  incident  were  not 
called.  The  Consul-General  expressed  his  great  regret  that  the  in- 
cident should  have  aroused  the  Ningpo  men  here  as  it  has  done,  and 
promised  to  send  H.  E.  Sheng  a  report  of  the  whole  of  the  evidence 
as  soon  as  possible.  H.  E.  Sh§ng  has  promised  the  Ningpo  gentry  here 
that  he  will  investigate  the  matter  as  soon  as  he  receives  this  evidence. 

After  the  judgment  was  given,  it  was  said  that  the  Russian 
Naval  authorities  consented  to  extradite  the  criminals  to  China, 
but  it  was  too  late. 

Sect.  VI.     The  Crew  of  the  Lena. 

The  Imperial  Government  despatched  to  Minister  Takahira 
instructions  in  the  following  sense  concerning  the  treatment 
of  the  crew  of  the  Lena: 

In  case  the  disarmament  is  to  be  executed,  the  Japanese 
Government  wishes  to  have  the  crew  detained  within  Ameri- 
can territory  till  the  end  of  the  war.  As  regards  the  detention 
of  the  crew  of  the  disarmed  man-of-war,  our  government  has 
already  made  the  same  arrangement,  granted  through  negotia- 
tions with  the  British  and  German  Governments,  and  is  now 
in  the  course  of  negotiations  with  China  and  France. 

Mr.  Takahira  negotiated  with  the  Acting  Secretary  of  State 
concerning  the  subject,  in  the  manner  shown  by  the  corre- 
spondence cited  below.1 

Mr.  Takahira  to  Mr.  Adee. 

Legation  of  Japan,  Washington,  September  16th,  1904. 
Sir: 

In  regard  to  the  disposal  of  the   officers  and   crew  of  the   Russian 
armed  transport  Lena   after  her  disarmament,  as  referred  to   in   your 
«  Foreign  Relations,  1904,  pp.  429-430. 


CHAP.  II.,  SECT.  VI.]      CREW  OF  THE   LENA.  483 

note  of  the  15th  instant,  I  have  the  honour  to  inform  you  that  I  have 
received  to-day  from  His  Imperial  Majesty's  Minister  for  Foreign  Affairs 
telegraphic  instructions  to  the  effect  that  I  should  inform  the  Govern- 
ment of  the  United  States  of  the  desire  of  the  Imperial  Government  to 
have  the  said  officers  and  crew  detained  in  the  territory  of  the  United 
States  until  the  end  of  hostilities. 

In  making  the  above  communication  to  you,  I  beg  leave  to  express 
my  earnest  hope  that  the  Government  of  the  United  States  will  find  it 
agreeable  to  take  into  their  favourable  consideration  the  desire  of  my 
government  as   above  mentioned. 

Accept,  Mr.  Secretary,  the  renewed  assurances  of  my  highest  con- 
sideration. 

(Signed)     K.   Takahira. 

The  following  was  the  reply: 

Mr.  Adee  to  Mr.  Takahira. 

Department  of  State,  Washington,  September  17th,  1904. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  note  of  yester- 
day, in  which,  with  regard  to  the  disposal  of  the  officers  and  crew  of 
the  Russian  armed  transport  Lena  after  disarmament,  as  referred  to  in 
my  note  of  the  15th  instant,  you  advise  me  that  you  received  yesterday 
instructions  to  inform  the  Government  of  the  United  States  of  the  desire 
of  the  Imperial  Government  to  have  the  said  officers  and  crew  detained 
in  the  territory  of  the  United  States  until  the  end  of  hostilities.  In 
making  the  above  communication  to  me,  you  express  the  earnest  hope 
that  the  Government  of  the  United  States  will  find  it  agreeable  to 
take  into  favourable  consideration  the  desire  of  your  government  as 
above  mentioned. 

In  reply,  I  have  the  honour  to  state  that  the  President,  exercising 
his  prerogative  in  carrying  out  the  neutrality  proclaimed  by  him,  had 
already,  before  the  receipt  of  your  communication,  taken  the  appropriate 
steps  to  detain  the  officers  and  crew  of  the  Lena  in  this  country  until 
peace  shall  have  been  concluded,  unless  in  the  meantime  the  belligerents 
shall  have  concurred  in  proposing  to  him  other  arrangements  in  this 
regard. 

Be  pleased  to  accept,  sir,  the  renewed  assurance  of  my  highest  con- 
sideration. 

Alvey  A.  Adee, 
Acting  Secretary  of  State. 
Mr.  Kogoro  Takahira,  etc.,  Washington. 


484  NEUTRALITY.  [PART  IV. 

Later  on  the  State  Department  was  asked  by  the  Russian 
Government  that  permission  be  given  to  Captain  Sinter  to  re- 
place Admiral  Berlinski  of  the  Lena,  who  went  to  Russia  on 
sick  leave,  the  Russian  Minister  of  Marine  guaranteeing  that 
Berlinski  will  take  no  part  in  the  war.  To  this  the  Japanese 
Government  consented. 

Such  was  the  substance  of  the  Lena  affair,  which  gave  a 
chance  to  the  United  States  of  America  of  distinguishing  her- 
self as  our  fellow-advocate  (so  free  from  partiality)  of  a  new 
principle  of  International  Law. 


CHAPTER   III. 

THE  SALE  OF  VESSELS  BY  NEUTRALS  TO  BEL- 
LIGERENTS DURING  THE  RUSSO-JAPANESE 
WAR. 

Sect.  L  Sale  of  Warships  by  a  Neutral  Government  to  a 
Belligerent. 

A  neutral  government  fails  in  its  duty  by  furnishing  to  a 
belligerent  vessels  of  war,  arms,  or  any  other  species  of  war 
material.1 

In  1825  the  Swedish  Government,  having  the  opportunity 
to  dispose  of  some  condemned  vessels  of  its  fleet,  sold  a  vessel 
of  the  line  and  two  frigates  to  a  Stockholm  trading  firm. 

The  vessels  were  immediately  resold  to  an  English  house, 
which,  it  transpired  in  the  sequel,  probably  held  an  agency  for 
the  insurgent  Mexican  Government. 

The  Spanish  Government  having  complained  of  the  transac- 
tion, the  Swedish  Ministers,  whilst  defending  their  action  as 
absolutely  within  their  legal  right,  rescinded  their  contract  at 
considerable  pecuniary  loss. 

So  in  1864,  the  British  Government,  in  view  of  the  Amer- 
ican Civil  War,  stopped  sales  of  unserviceable  vessels,  and  ac- 
tually paid  the  sum  of  £100,000  by  way  of  compensation  for 
the  detention  in  British  ports  and  the  prevention  of  the  sale 
of  a  flotilla  of  vessels,  which  had  been  collected  for  the  Chinese 
service,  and  subsequently  left  on  the  hands  of  the  British  Com- 
mander of  the  expedition. 

A  neutral  Government  is  under  obligations  not  to  sell  to  a 
belligerent  either  war  vessels,  or  any  other  materials  which  may 
promote  its  warlike  efficiency. 

1  Walker's  Manual  of  Public  International  Law,  p.  162. 
485 


486  NEUTRALITY.  [PART  IV. 

The  fact  has  been  confirmed  that  in  the  course  of  the  late 
war  the  Kussian  Government  attempted  the  purchase  of  war 
vessels  from  a  neutral  (while  our  own  was  entirely  innocent  of 
such  an  illegal  scheme). 


On  the  Russian  Purchase  of  Argentine  War  Vessels. 

On  the  23rd  of  June,  1904,  several  newspapers  of  the  Argen- 
tine Eepublic  stated  that  Eussia  was  about  to  purchase  several 
Argentine  war  vessels.  The  Argentine  Minister,  with  the  view 
of  determining  if  there  was  any  truth  in  it,  made  inquiry.  He 
said  as  follows : 

Eecently  a  certain  German  merchant  at  Buenos  Ayres  sent 
in  to  the  Argentine  Government  an  application  for  the  pur- 
chase of  war  vessels,  acting  as  agent  for  a  certain  European 
Power.  On  being  told  that  the  Government  would  do  nothing 
with  such  an  application  unless  well  convinced  of  the  legitimacy 
of  the  procedure,  the  applicant  declared  that  the  Power  con- 
cerned was  Turkey. 

Thereupon  the  Argentine  Government  telegraphed  to  Calvo, 
Argentine  Minister  at  Paris,  to  ascertain  Avhether  the  state- 
ment of  the  German  merchant  was  true,  and  got  an  answer 
to  the  effect  that  the  Turkish  Government  had  no  intention  of 
purchasing  any  war  vessels,  and  that  the  said  vessels  were  to 
be  resold  to  the  Eussian  Government.  So  that  the  negotia- 
tions were  abandoned,  and  the  merchant  received  chastisement 
because  of  his  fraud. 

Besides,  the  same  Minister  Gorostiaga  remarked  that  his 
Government  would  not  venture  to  sell  any  war  vessel  to  a  bel- 
ligerent now  that  the  express  declaration  of  neutrality  had  been 
issued. 

Nevertheless  the  following  information  was  sent  in,  on  No- 
vember 6th  the  same  year. 

Charles  Flint,  of  New  York,  head  of  the  firm  of  Messrs. 
Flint  and  Co.  and  of  Flint,  Eddy  and  Co.,  has  obtained  through 
Hart  Berg  a  contract  with  the  Eussian  Government  for  sell- 


CHAP.  III.,  SECT.  II.]      SALE    OF  WAR   VESSELS.  487 

ing  to  Eussia  of  certain-men-of-war,  by  Chile  and  the  Argentine 
Republic.  Winfield  Stern,  of  New  York,  tried  to  get  a  neu- 
tral Power  to  carry  out  this  contract.  The  Persian  Minister 
to  France  agreed  to  obtain  the  consent  of  his  government 
to  become  such  neutral,  and  did  obtain  it.  The  Chilian  and 
Argentine  Governments  each  signified  their  acceptance  of  this 
neutral.  Flint,  who  arrived  in  Paris  September  19th,  left  for 
Eussia  October  31st,  accompanied  by  Berg.  During  his  stay 
in  Paris,  he  conferred  very  frequently  with  Stern  and  Captain 
Brousselof  of  the  Eussian  Navy,  sent  from  Eussia  to  facilitate 
negotiations.  Stern  left  Paris  October  22nd,  and  sailed  from 
Lisbon  October  24th  for  Buenos  Ayres,  where  he  will  arrive 
about  November  14th.  His  arrival  at  Buenos  Ayres  will  close 
the  arrangement  of  the  matter. 

The  price  of  the  sale  is  not  clearly  known,  but  is  believed 
to  be  about  $17,000,000. 

But  these  rumours  did  not  materialize. 

Sect.  II.  Sale  of  War  Vessels  from  Neutral  Firms  to  a 
Belligerent. 

International  Law  imposes  an  obligation  upon  a  neutral  gov- 
ernment to  prevent  its  subjects  from  selling  any  war  materials 
to  either  party  of  the  belligerents. 

The  fact  cited  below  demonstrates  that  Eussia  was  not  en- 
tirety innocent  of  having  purchased  warships  from  neutral 
firms. 

Still  fresh  in  Japan's  remembrance,  are  articles  found 
in  several  British  newspapers  of  November  22  or  23,  1904, 
stating  that  the  torpedo  destroyer  Caroline  (515  tons,  25.5 
knots),  built  by  the  Yarrow  Co.,  was  purchased  by  the  Eus- 
sian Government,  and  duly  delivered  on  October  10th  at 
Libau. 

Apparently  in  this  transaction  the  matter  was  promptly 
carried  out  by  the  parties  concerned,  although  the  British  Gov- 
ernment was  always  exercising  due  diligence. 


488  NEUTRALITY.  [PART  IV. 

Sect.  III.  Sale  of  Vessels  Other  Than  War  Vessels  from 
Neutral  Firms  to  a  Belligerent  State. 

In  the  time  of  "  hostilities  "  the  purchase  of  vessels  other 
than  war  vessels  by  a  belligerent  Government  from  neutral 
firms  cannot  be  prohibited,  as  in  the  case  of  war  vessels,  al- 
though it  is  a  question  how  far  a  neutral  Government  is  obliged 
to  interfere  with  such  purchases,  if  the  vessels  concerned  are 
clearly  to  be  directed  for  warlike  purposes. 

The  Japanese  Government  has  never  purchased  from  a  neu- 
tral any  vessel  with  the  purpose  of  making  it  a  war  vessel, 
whereas  Eussia,  since  the  outbreak  of  hostilities,  purchased  the 
following  ships  from  the  North  German  Lloyd  Company  and 
the  German  Hamburg- American  Company,  and  fitted  them  up 
as  war  vessels  at  Libau: 


I. 

The  Furst  Bismarck. 

II. 

The  Kaiserin  Maria  Theresa. 

III. 

The  Colombia. 

IV. 

The  August  Victoria. 

V. 

The  Lahn. 

VI. 

The  Belgia. 

VII. 

The   Deutschland. 

mi. 

The  Kaiser  Friedrich. 

The  Franche-Comte. 

Furthermore,  the  following  one  was  purchased  from  the 
Societe   General   de   Transportation   Marine   a   Vapeur: 

Most  of  these,  however,  were  reported  by  western  papers 
after  the  war  as  having  been  repurchased  by  their  original 
owners. 

One  thing  to  be  noticed,  is  the  denial  of  the  rumour  of 
Germany's  aiding  Russia  concerning  the  sale  of  vessels,  so 
strongly  upheld  by  the  German  Premier,  who,  on  April  14th, 
1904,  in  the  Reichstag  declared  that  the  sale  of  vessels  to  Rus- 
sia was  far  from  showing  any  partiality  for  Russia  against  Ja- 
pan, since  Japan  could  procure  just  the  same  favour  if  she  was 
so  inclined.     He  cited  a  similar  precedent  from  the  Spanish- 


CHAP.  III.,  SECT.  IV.]      SALE   OF  VESSELS.  489 

American  War,  in  the  course  of  which  Germany  sold  mail  ships 
to  Spain  through  the  intermediary  of  a  third  Power. 

Still  it  must  be  noticed  from  the  point  of  view  of  Inter- 
national Law  that  any  breach  of  neutral  obligation  cannot  be 
justified  by  allowing  the  same  thing  to  both  belligerent  coun- 
tries, and  if  the  Nord  Deutch  Loyde  Company  have  received 
subsidies  from  the  German  Government,  on  condition  that  the 
vessels  of  the  company  are  at  the  disposal  of  the  said  govern- 
ment in  time  of  war  between  Germany  and  other  Powers, 
the  said  Government  must  have  some  responsibility  in  over- 
looking the  sale  of  such  vessels  to  one  of  the  belligerents,  such 
as  Russia  in  the  late  war. 

Sect.  IV.  Sale  of  Vessels  by  Neutral  Subjects  to  Belligerent 
Subjects. 

No  blame  can  be  attached  to  such  a  purchase. 

In  1904,  73  vessels,  and  in  1905,  81  vessels  were  purchased 
by  Japanese  subjects,  which  fact  affords  testimony  to  Japan's 
perfect  command  of  the  sea,  making  it  secure  enough  for  them 
to  be  engaged  in  active  navigation.  In  contrast  to  this,  the 
common  usage  of  belligerent  subjects  is  to  evade  capture  by 
the  enemy  by  transferring  their  own  vessels  to  neutral  subjects, 
as,  for  instance,  ships  of  the  Chan-Shang-Kink,  China,  in  the 
time  of  the  Chino-Japanese  War. 

Following  is  annexed  a  table,  containing  the  number  and 
tonnage  of  vessels  chartered  by  Japanese  subjects  from  for- 
eigners, none  of  which,  except  some  illegally  damaged  by  Rus- 
sian warships,  met  with  an  accident. 

This  actually  shows  how  powerful  is  the  naval  power  of 
Japan,  by  which  these  vessels  were  protected,  in  the  presence 
of  the  enemy's  fleet. 


490 


NEUTRALITY. 


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CHAPTER    IV. 
CONTRABAND    OF    WAR. 

Sect.  I.     The  Japanese  Attitude. 

On  the  10th  of  Feb.,  1904,  the  order  of  the  Japanese  Naval 
Department  concerning  contraband  of  war  was  issued.  In 
general,  it  follows  the  British  and  American  practice  of  mak- 
ing a  distinction  between  absolute  and  conditional  contraband. 
It  runs  thus : 

Order  of  the  Navy  Department  Concerning  Contraband  of  War  in  the 
Russo-Japanese  War.     {Order  No.  1.) 
The  following  articles   are    contraband    of  war   in  the    Russo-Japa- 
nese War: 

1.  The  following  articles  are  contraband  of  war  when  they  pass 
through,  or  are  destined  to,  the  enemy's  territory,  or  to  the  enemy's 
army  or  navy: 

Arms,  ammunition,  explosives,  and  materials  (including  also  lead, 
saltpetre,  sulphur,  etc.),  and  machines  for  manufacturing  them,  cement, 
uniforms  and  equipments  for  army  and  navy,  armour  plates,  materials 
for  building  ships  and  their  equipments,  and  all  other  articles  to  be 
used  solely  for  hostile  purposes. 

2.  The  following  articles  are  contraband  of  war  in  case  they  are 
destined  to  the  enemy's  army  or  navy,  or  in  case  they  are  destined  to 
the  enemy's  territory,  and  from  the  landing  place  it  can  be  inferred 
that  they  are  intended  for  military  use: 

Provisions  and  drinks,  clothing  and  materials  for  clothing,  horses 
and  harness,  fodder,  wheeled  vehicles,  coal  and  other  kinds  of  fuel,  tim- 
ber, currency,  gold  and  silver  bullion,  and  materials  for  telegraph,  tele- 
phone, and  railroad  lines.  (The  words  "  clothing  and  materials  for 
clothing  "  and  "  other  kinds  of  fuel  "  were  added  by  order  No.  1  of  the 
Navy  Department,  of  the  38th  year  of  Meiji.) 

3.  Of  the  articles  mentioned  in  the  above  two  clauses,  if  it  is  clear 
from  their  quality  and  quantity  that  they  are  intended  for  the  vessel's 
own  use,  such  articles  shall  not  be  considered  contraband  of  war. 

491 


492  NEUTRALITY.  [PART  IV. 

Arts.  XIII.,  XIV.,  and  XV.  of  the  Japanese  Prize  Regulations  are 
exactly  the  same  as  the  above  mentioned  order. 

Art.  XIII.  The  following  goods  are  contraband  of  war  when  they 
are  destined  to  the  enemy's  territory  or  to  the  enemy's  army  or  navy: 

Arms,  ammunition,  and  explosives,  and  materials  (including  (also) 
lead,  saltpetre,  sulphur,  etc.),  and  machines  for  manufacturing  them, 
cement,  uniforms  and  equipment  for  the  army  and  navy,  armour  plates, 
materials  for  building  ships  and  other  equipment,  and  all  articles  to  be 
used  solely  for  hostile  purposes. 

Art.  XIV.  The  following  goods  are  contraband  of  war  in  case 
they  are  destined  to  the  enemy's  army  or  navy,  or  in  case  they  are 
destined  to  the  enemy's  territory,  and  from  the  landing  place  it  can 
be  inferred  that  they  are  intended  for  military  purposes:  provisions 
and  drinks,  clothing  and  materials  for  clothing,  horses,  harness,  furl, 
wheeled  vehicles,  coal  and  other  kinds  of  fuel,  timber,  currency,  gold 
and  silver  bullion,  materials  for  the  telegraph,  telephone,  and  rail- 
road lines. 

Art.  XV.  The  destination  of  a  vessel  is  generally  considered  as  also 
the  destination  of  her  cargo. 

A  Question  Concerning  the  Japanese  Declaration   of 
Contraband. 

When  the  Japanese  notification  of  the  10th  of  Feb.,  1904, 
enumerating  contraband  of  war  was  reported  to  the  British 
Government,  the  British  Government  felt  some  anxiety  regard- 
ing the  words,  "In  case  they  are  destined  to  the  enemy's  terri- 
tory" wThich  appears  in  the  second  paragraph  of  the  article 
mentioned  as  second-class  contraband  goods.  It  was  desired 
to  know  whether  the  article  correctly  stated  the  language  of 
the  notification,  or  whether  the  language  of  the  proclamation 
issued  in  1894  which,  it  said,  appears  textually  to  follow  the 
terms  of  Imperial  Ordinance  149,  Prize  Court  Law,  Chapter 
1.  Art.  X.  should  be  relied  on.  Below  is  the  answer  of  the 
Japanese   Government.      (Under   date   of   Feb.    27.) 

The  second  paragraph  of  the  notification  of  February  10th 
reads  literally  as  follows: 

"  The  following  goods  shall  be  contraband  either  in  case 
their  destination  is  the  enemy's  army  or  navy  or  in  case  their 
destination  is  the  enemy's  territory,  when  it  may  be  presumed 


CHAP.  IV.,  SECT.  I.]      THE   JAPANESE   ATTITUDE.  493 

* 

from  the.  position  of  such  destination  that  the  said  goods  are 
intended  for  the  use  of  the  enemy's  army  or  navy/' 

The  only  difference  between  the  present  notification  and  the 
Prize  Law  of  1894  is  that  in  the  latter  the  words  "enemy's 
ports  "  occur  in  place  of  "  enemy's  territory ." 

This  makes  no  practical  difference,  and  it  will  be  noticed 
that  some  of  the  published  English  translations  of  the  Prize 
Law  are  erroneously  rendered  in  this  respect. 

Again,  on  March  10th,  1904,  the  Marquis  of  Lansdowne 
told  the  Japanese  Minister  at  London  that  the  principle  laid 
down  in  the  latter  part  of  the  paragraph  in  question  was  an 
illegal  extension  of  the  principle  in  regard  to  food  stuff. 

He  said  the  British  Government  would  regard  with  alarm 
such  an  extension,  which  would  also  be  found  to  run  counter 
to  the  views  of  the  United  States,  and  which  seemed  moreover 
to  be  contrary  to  the  interests  of  Japan  as  a  maritime  insular 
power. 

Accordingly  His  Lordship  wished  to  know  the  exact  terms 
of  the  Japanese  notification  of  February  10th  regarding  the 
matter. 

Concerning  the  destination  of  conditional  contraband  in  the 
said  article,  there  took  place  again  some  questioning  when  the 
Hsiping  was  detained  and  some  conditional  contraband  on 
board  the  vessel  was  condemned  by  the  Japanese  Prize  Court. 
The  question  is  quite  scientific,  and  is  a  very  good  example 
for  the  study  of  International  Law. 

The. views  of  the  Japanese  Government  and  Japanese  law- 
yers are  as  follows: 

As  regards  the  interpretation  of  Art.  XIV.  of  the  Japanese 
Regulations  Respecting  Captures  at  Sea,  the  British  Foreign 
Office  appears  to  labour  under  misapprehension.  They  seem  to 
construe  that  certain  kinds  of  articles  destined  for  the  enemy's 
territory  are  treated  as  contraband  on  mere  presumption  that 
they  might  be  provided  eventually  for  the  use  of  the  enemy's 
naval  or  military  forces;  but  this  is  not  the  correct  interpreta- 
tion of  the  aforesaid  article.     Art.   XIV.   of  the  Regulations 


494  NEUTRALITY.  [PART  IV. 

_ _ — . 1 — *— 

Respecting  Captures  at  Sea  says  that  "goods  hereinafter  men- 
tioned are  treated  as  contraband  of  war  only  when  they  are 
destined  for  the  enemy's  army  or  navy,  or  when  destined  for 
the  enemy's  territory,  and  when,  having  regard  to  the  nature 
and  character  of  such  destination,  they  can  reasonably  be  con- 
sidered as  intended  for  the  use  of  the  enemy's  army  or  navy.*' 

The  former  part  of  the  article,  viz.,  the  case  when  "  they 
are  destined  for  the  enemy's  army  or  navy,"  of  course  implies 
the  case  where  there  is  direct  evidence  that  the  goods  shall 
reach  the  enemy's  army  or  navy;  for  instance,  when  the  goods 
are  addressed  to  a  military  force  or  a  fleet  of  the  enemy. 

The  latter  part,  viz.,  "when  destined  for  the  enemy's  terri- 
tory, and  when,  having  regard  to  the  nature  and  character  of 
such  destination  they  can  reasonably  be  considered  as  intended 
for  the  use  of  the  enemy's  army  or  navy,"  means  such  a  case 
as,  taking  into  consideration  all  the  surrounding  circumstances, 
such  as  the  nature  and  character  of  the  locality  of  their  hostile 
destination,  the  kind  and  nature  of  the  goods  themselves,  etc., 
it  can  be  reasonably  assumed  that  the  goods  will  be  provided 
for  the  use  of  the  enemy's  army  or  navy;  though  there  may 
not  be  any  direct  evidence  of  their  intended  delivery. 

Thus  it  will  be  seen  that  even  in  the  case  of  the  latter  part 
of  the  article,  the  principle  of  the  regulations  does  not  condemn 
any  goods  as  contraband  upon  the  mere  fact  that  their  destina- 
tion is  in  a  hostile  quarter,  but  it  stigmatises  them  as  such 
only  when  circumstantial  evidence  amply  shows  that  the  goods 
are  intended  for  the  use  of  the  enemy's  army  or  navy.  Such 
being  the  case,  the  provision  of  Art.  XIV.  of  Japan's  regula- 
tions does  not  much  differ,  in  the  main,  from  the  principle  hith- 
erto sustained  by  the  British  Government,  and  most  decidedly 
it  is  not  an  undue  extension  of  the  theory  concerning  contra- 
band of  war. 

And  it  can  certainly  be  maintained  that  the  Sasebo  Prize 
Court,  in  giving  decision  respecting  the  cargoes  of  the  Hsi- 
ping,  did  not  disregard  the  principle  just  referred  to. 

For  instance,  it  may  be  pointed  out  that  the  decision  of  the 


[AP.  IV.,  SECT.  II.]      THE  RUSSIAN   ATTITUDE.  495 

lasebo  Prize  Court  in  condemning  the  food  stuffs  and  bever- 
ages found  on  board  the  Hsiping  as  contraband  was  based  on 
the  grounds  that  the  goods  were  of  such  a  nature  as  are  spe- 
cially suitable  for  the  use  of  Europeans,  that  there  being  at  the 
time  in  the  part  of  Newchwang,  whither  the  goods  were  des- 
tined, only  a  small  number  of  Europeans  other  than  Eussians, 
those  articles  could  not  be  considered  as  destined  for  the  local 
European  residents ;  while,  on  the'  other  hand,  it  was  a  well- 
known  fact  that  not  only  a  multitude  of  the  Russian  forces 
was  stationed  there,  but  the  port  itself  was  then  a  chief  com- 
missariat basis  of  the  Eussian  Army,  and  that  under  these  cir- 
cumstances no  contention  can  possibly  be  entertained  against 
the  conclusion  that  the  aforesaid  food  stuffs  and  beverages  were 
intended  for  the  use  of  the  hostile  forces. 

Sect.  II.     The  Russian  Attitude. 

The  Eussian  rules  in  regard  to  maritime  prizes  were  ap- 
proved by  the  Emperor  on  March  27,  1895.  These  rules  are 
full,  containing  93  articles. 

The  following  articles  are  deemed  to  be  contraband  of  war: 

(1)  Small  arms  of  every  kind,  and  guns,  mounted  or  in  sections,  as 
well  as  armour  plates. 

(2)  Ammunition  for  firearms,  such  as  projectiles,  shell  fuses,  bullets, 
priming,  cartridges,  cartridge  cases,  powder,  saltpetre,  sulphur. 

(3)  Explosives  and  materials  for  causing  explosions,  such  as  tor- 
pedoes, dynamite,  pyroxyline,  various  explosive  substances,  wire  con- 
ductors, and  everything  used  to  explode  mines  and  torpedoes. 

(4)  Artillery,  engineering  and  camp  equipment,  such  as  gun  car- 
riages, ammunition  waggons,  boxes  or  packages  of  cartridges,  field 
kitchens  and  forges,  instrument  waggons,  pontoons,  bridge  trestles, 
barbed  wire,  harness,  etc. 

(5)  Articles  of  military  equipment  and  clothing,  such  as  bandoliers, 
cartridge  boxes,  knapsacks,  straps,  cuirasses,  intrenching  tools,  drums, 
pots  and  pans,  saddles,  harness,  completed  parts  of  military  uniforms, 
tents,  etc. 

(6)  Vessels  bound  for  an  enemy's  port,  even  if  under  neutral  com- 
mercial flag,  if  it  is  apparent  from  their  construction,  interior  fittings, 
and   other  indication  that  they  have  been  built  for  warlike  purposes, 


496  NEUTRALITY.  [PART  IV. 

and  are  proceeding  to  an  enemy's  port  in  order  to  be  sold   or  handed 
over  to  the  enemy. 

(7)  Boilers  and  every  kind  of  naval  machinery,  mounted  or  un- 
mounted. 

(8)  Every  kind  of  fuel,  such  as  coal,  naphtha,  alcohol,  and  other 
similar  materials. 

(9)  Articles  and  materials  for  the  installation  of  telegraphy,  tele- 
phones, or  for  the  construction  of  railroad. 

(10)  Generally,  everything  intended  for  warfare  by  sea  or  land,  as 
well  as  rice,  provisions,  and  horses,  beasts  of  burden,  and  other  mate- 
rials which  may  be  used  for  warlike  purposes,  if  they  are  transported 
on  the  account  of,  or  are  destined  for,  the  enemy. 

The  following  acts,  forbidden  to  neutrals,  are  assimilated  to  contra- 
band of  war:  The  transport  of  the  enemy's  troops,  of  his  despatches 
and  correspondence,  the  supply  of  transports  and  warships  to  the  enemy. 
Neutral  vessels  captured  in  the  act  of  carrying  contraband  of  this 
nature  may,  according  to  circumstances,  be  seized,  and  even  confiscated. 
(Rules  of  February  16,  1906.) 

The  following  is  an  order  issued  by  the  Kussian  authorities 
in  Yingkow: 

Order  No.  25. 

14-27  March,  1904. 
According  to  an  order  issued  by  the  Viceroy  of  His  Imperial  Maj- 
esty in  the  Far  East,  the  Port  of  Yingkow  has  been  proclaimed  to  be 
under  martial  law.  Until  the  publication  of  the  said  order  the  follow- 
ing regulations  shall  be  enforced,  and  are  brought  into  immediate 
operation : 

1.  Martial  law  extends  over  the  town  and  port  of  Yingkow,  and 
over  the  whole  of  the  population  without  distinction  as  to  nationality. 

2.  The  passengers  and  cargoes  arriving  here  are  to  undergo  exam- 
ination, and  for  this  purpose  all  steamers,  sailing  vessels,  and  junks, 
having  entered  the  mouth  of  the  river,  must  anchor  at  the  distance  of 
5 A  miles  below  the  port.  A  steam  launch,  tide  permitting,  and  exclu- 
sively during  daylight,  with  a  naval  and  customs  officer  on  board,  will 
meet  the  vessels  at  that  spot;  they  will  examine  the  vessels  and  con- 
duct them  to  the  berths  which  will  be  allotted  to  them  by  the  Customs. 

3.  The  import  of  arms  and  ammunition  is  prohibited. 

4.  It  is  prohibited  to  export  to  any  port  of  Japan  or  Korea  any 
articles  of  military  contraband  named  in  the  accompanying  list. 

5.  When  exporting  such  articles  to  neutral  ports,  the  shipper  has 
to  pay  into  the  Customs  a  sum  as  security  equal  to  the  value  of  the 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN   ATTITUDE.  497 

cargo,  as  a  guarantee  that  this  cargo  will  not  be  reshipped  from  the 
neutral  port  to  any  port  of  Japan  or  Korea. 

6.  The  lightship  and  leading  marks  will  temporarily  not  be  put  up 
at  the  mouth  of  the  river. 

7.  When  dealing  with  articles  contraband  of  war  the  regulations 
sanctioned  by  His  Majesty  on  the  14th  February,  1904,  are  to  serve  as 
guidance. 

8.  Military  and  civil  authorities  of  the  town  and  the  port  of  Ying- 

kow  have  to  be  guided  by  the  regulation  and  laws  published  in  S.  23, 

denning  the  administration  of  Provinces. 

(Signed)     V.  Grosse. 

List  of  the  Articles  Considered  as  Contraband  of  War. 
Arms,  artillery  guns,  armour,  ammunition,  material  for  explosive 
purposes.  All  articles  for  military  carts,  wire,  pontoons,  everything  in 
connection  with  military  equipment;  seagoing  vessels,  even  when  flying 
neutral  flags,  but  proceeding  to  the  enemy's  port  for  military  purposes; 
ships'  engines  and  machinery,  boilers  coal,  petroleum,  spirits  of  wine, 
materials  for  telegraph  and  telephone  lines,  eatables,  beans,  beancakes, 
oil,  rice,  horses  and  other  animals,  cattle,  and,  in  general,  all  articles 
for  naval  and  military  warfare. 

This  Russian  declaration  in  regard  to  contraband  called 
forth  definite  statements  in  regard  to  the  position  which  certain 
neutral  Governments  proposed  to  assume.  Various  protests 
against  the  extreme  position  of  Russia  were  lodged  with  that 
Government.1 

Protests  Against  Russian  Attitude,  190^-5. 
The  Government  of  the  United  States  sent  the  following 
communication : 

Department  of  State,  Washington,  D.  C,  June  10,  1904. 
To  the  Ambassadors  of  the  United  States  in  Europe. 
Gentlemen : 

It  appears  from  public  documents  that  coal,  naphtha,  alcohol,  and 
other  fuel  have  been  declared  contraband  of  war  by  the  Russian  Gov- 
ernment. These  articles  enter  into  general  consumption  in  the  arts  of 
peace,  to  which  they  are  vitally  necessary.  They  are  usually  treated 
not  as  "  absolutely  contraband  of  war,"  like  articles  that  are  intended 
primarily  for  military  purposes  in  time  of  war,  such  as  ordnance,  arms, 

1  International  Law  Topic  and  Discussion,  1905,  pp.  34-47. 


498  NEUTRALITY.  [PART  IV. 

ammunition,  etc.,  but  rather  as  "  conditional  contraband,"  that  is  to 
say,  articles  that  may  be  used  for  or  converted  to  the  purposes  of 
war  or  peace,  according  to  circumstances.  They  may  rather  be  classed 
with  provisions  and  food-stuffs  of  ordinary  innocent  use,  but  which  may 
become  absolutely  contraband  of  war  when  actually  and  especially  des- 
tined for  the  military  or  naval  forces  of  the  enemy. 

In  the  war  between  the  United  States  and  Spain  the  Navy  Depart- 
ment, General  Orders,  No.  492,  issued  June  20,  1898,  declared  in  Art. 
XIX.  as  follows: 

"  The  term  contraband  of  war  comprehends  only  articles  having  a 
belligerent  destination."  Among  articles  absolutely  contraband  it  de- 
clared ordnance,  machine  guns,  and  other  articles  of  military  or  naval 
warfare.  It  declared  as  conditional  contraband  "  coal,  when  destined 
for  a  naval  station,  a  port  of  call,  or  a  ship  or  ships  of  the  enemy."  It 
likewise  declared  provisions  to  be  conditionally  contraband  "  when  des- 
tined for  the  enemy's  ship  or  ships,  or  for  a  place  that  is  besieged." 
The  above  rules  as  to  articles  absolutely  or  conditionally  contraband 
of  war  were  adopted  in  the  naval  war  code  promulgated  by  the  Navy 
Department,  June  27,  1900.  (Withdrawn  February  6,  1904.)  While  it 
appears  that  the  documents  mentioned  that  rice,  food-stuffs,  horses, 
beasts  of  burden,  and  other  animals  which  may  be  used  in  the  time  of 
war  are  declared  to  be  contraband  of  war  only  when  they  are  trans- 
ported for  account  of  or  destined  to  the  enemy,  yet  all  kinds  of  fuel, 
such  as  coal,  naphtha,  alcohol,  are  classified  along  with  arms,  ammuni- 
tion, and  other  articles  intended  for  warfare  on  land  and  sea. 

The  test  in  determining  whether  articles  ancipites  usvs  are  contra- 
band of  war  is  their  destination  for  military  uses  of  a  belligerent.  Mr. 
Dana,  in  his  notes  to  Wheaton's  International  Law,  says: 

"  The  chief  circumstance  of  inquiry  would  naturally  be  the  port  of 
destination.  If  that  is  a  naval  arsenal,  or  a  port  in  which  vessels  of 
war  are  usually  fitted  out,  or  in  which  a  fleet  is  lying,  or  a  garrison 
town,  or  a  place  from  which  military  expeditions  are  fitted  out,  the  pre- 
sumption of  military  use  would  be  raised  more  or  less  strongly,  accord- 
ing to  circumstances." 

In  the  wars  of  1859  and  1870  coal  was  declared  by  France  not  to  be 
contraband.  During  the  latter  war  Great  Britain  held  that  the  char- 
acter of  coal  depended  upon  its  destination,  and  refused  to  permit  ves- 
sels to  sail  with  it  to  the  French  fleet  in  the  North  Sea.  Where  coal  or 
other  fuel  is  shipped  to  a  port  of  a  belligerent,  with  no  presumption 
against  its  specific  use,  to  condemn  it  as  absolutely  contraband  would 
seem  to  be  an  extreme  measure. 

Mr.  Hall,  International  Law,  says: 

"  During  the  West  African  conference  in  1884  Russia  took  occasion 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN   ATTITUDE.  499 

to  dissent  vigorously  from  the  inclusion  of  coal  among  articles  con- 
traband of  war,  and  declared  that  she  would  categorically  refuse  her 
consent  to  any  articles  in  any  treaty,  convention,  or  instrument  what- 
ever which  would  imply  its  recognition  as  such." 

We  are  also  informed  that  it  is  intended  to  treat  raw  cotton  as  a 
contraband  of  war.  While  it  is  true  raw  cotton  could  be  made  into 
clothing  for  military  uses  of  a  belligerent,  a  military  use  for  the  supply 
of  the  army  or  garrison  might  possibly  be  made  of  food-stuff  of  every 
description  which  might  be  shipped  from  neutral  ports  to  the  non- 
blockaded  ports  of  a  belligerent.  The  principle  under  consideration 
might,  therefore,  be  extended  so  as  to  apply  to  every  article  of  human 
use  which  might  be  declared  contraband  of  war  simply  because  it  might 
ultimately  become  in  any  degree  useful  to  a  belligerent  for  military 
purposes. 

Coal  or  other  fuel  and  cotton  are  applied  for  a  great  many  inno- 
cent purposes.  Many  nations  are  dependent  on  them  for  the  conduct  of 
inoffensive  industries,  and  no  sufficient  presumption  of  an  intended  war- 
like use  seems  to  be  afforded  by  the  mere  fact  of  their  destination  to 
a  belligerent  port.  The  recognition  in  principle  of  the  treatment  of  coal 
and  other  fuel  and  raw  cotton  as  absolutely  contraband  might  ulti- 
mately lead  to  a  total  inhibition  of  the  sale  by  neutrals  to  the  people 
of  belligerent  States  of  all  articles  which  could  be  finally  converted  to 
military  uses.  Such  an  extension  of  the  principle,  by  treating  coal  and 
all  other  fuel  and  raw  cotton  as  absolute  contraband  of  war,  simply 
because  they  are  shipped  by  a  neutral  to  a  non-blockaded  port  of  a 
belligerent,  would  not  appear  to  be  in  accord  with  the  reasonable  and 
lawful  rights  of  a  neutral  commerce. 

I  am  your  obedient  servant, 

John  Hay. 

Later  in  1904  there  was  an  exchange  of  views  on  the  sub- 
ject of  the  declaration  of  Kussia  between  the  Governments  of 
Great  Britain  and  the  United  States. 

Mr.  Choate  to  Lord  Lansdowne. 

American  Embassy,  London,  June  24,  1904. 
My  Lord: 

Referring  to  our  recent  interviews,  in  which  you  expressed  a  desire 
to  know  the  views  of  my  Government  as  to  the  order  issued  by  the 
Russian  Government  on  the  28th  of  February  last,  "  making  every  kind 
of  fuel,  such  as  coal,  naphtha,  alcohol,  and  other  similar  materials,  un- 
conditionally contraband,"  I  am  now  able  to  state  them  as  follows: 

These  articles  enter  into  great  consumption  in  the  arts  of  peace,  to 


500  NEUTRALITY.  [PART  IV. 

which  they  are  vitally  necessary.  They  are  usually  treated  not  as 
"  absolutely  contraband  of  war,"  like  articles  that  are  intended  pri- 
marily for  military  purposes  in  time  of  war,  such  as  ordnance,  arms, 
ammunition,  etc.,  but  rather  as  "conditionally  contraband";  that  is 
to  say,  articles  that  may  be  used  for  or  converted  to  the  purposes  of 
war  or  peace,  according  to  circumstances.  They  may  rather  be  classed 
with  provisions  and  food-stuffs  of  ordinary  innocent  use,  but  which  may 
become  absolutely  contraband  of  war  when  actually  and  especially  des- 
tined for  the  military  and  naval  forces  of  the  enemy.  The  recognition 
in  principle  of  the  treatment  of  coal  and  other  fuel  and  raw  cotton  as 
absolutely  contraband  of  war  might  ultimately  lead  to  a  total  inhi- 
bition of  the  sale  by  neutrals  to  the  people  of  belligerent  states  of  all 
articles  which  could  be  finally  converted  to  military  uses. 

Such  an  extension  of  the  principle,  by  treating  coal  and  all  other 
fuel  and  raw  cotton  as  absolutely  contraband  of  war  simply  because 
they  are  shipped  by  a  neutral  to  non-blockaded  port  of  a  belligerent, 
would  not  appear  to  be  in  accord  with  reasonable  and  lawful  rights 
of  a  neutral  commerce. 

I  shall  be  glad  to  receive  and  transmit  to  my  Government  the  views 

of  His  Majesty's  Government  on  the   same   question,  as  soon   as  your 

lordship  shall  have  formulated  them. 

I  have,  etc. 

Joseph  H.  Choate. 

Lord  Lansdowne  replied: 

Foreign  Office,  July  29,  1904. 
Your  Excellency: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  note  of  the 
24th  ultimo,  containing  the  views  of  the  United  States  Government 
with  regard  to  the  Russian  regulation  of  the  28th  February  last,  in 
which  every  kind  of  fuel,  such  as  coal,  naphtha,  alcohol,  and  other 
similar  materials  is  declared  to  be  absolutely  and  unconditionally  con- 
traband of  war. 

I  have  the  honour  to  inform  your  Excellency,  in  reply  to  your  re- 
quest to  be  furnished  with  the  views  of  His  Majesty's  Government  on 
this  subject,  that  the  views  of  the  United  States  Government,  as  ex- 
pressed in  your  Excellency's  note,  are  generally  in  accord  with  those 
Avhich  have  been  held  and  acted  upon  from  time  to  time  by  His  Maj- 
esty's Government.  With  reference,  however,  to  the  statement  made 
in  paragraph  7,  as  to  the  attitude  of  Great  Britain  in  1870  in  regard 
to  coal,  I  would  observe  that  Her  late  Majesty's  Government  refused 
in  that  year  to  permit  vessels  to  sail  with  coal  to  the  French  Fleet,  not 
merely  because  they  held  that  the  character  of  the  coal  depended  upon 
its  destination,  but  because   they  held  that  steamers  engaged  to  take 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN   ATTITUDE.  501 

out  cargoes  of  coal  to  the  French  Fleet  in  the  North  Sea  would  be  in 
reality  acting  as  storeships  to  that  fleet. 

It  is,  however,  right  that  I  should  add  that,  in  the  altered  con- 
ditions of  modern  maritime  warfare  and  the  ever-increasing  impor- 
tance of  the  part  played  therein  by  coal,  His  Majesty's  Government 
propose  to  submit  the  whole  question  to  careful  and  exhaustive  exam- 
ination at  an  early  date,  with  the  object  of  determining  whether  and 
in  what  respects  the  British  rules,  as  hitherto  acted  upon,  are  in  need 
of  revision. 

In  these  circumstances  His  Majesty's  Government  does  not  propose  to 
make  any  formal  protest  at  the  present  stage  against  Russian  declara- 
tion in  so  far  as  the  question  of  coal  is  concerned.  They  have,  how- 
ever, already  entered  a  protest  against  the  treatment  of  food-stuffs  as 
absolutely  contraband,  and  they  have  pointed  out  that  they  observe 
with  great  concern  that  rice  and  provisions  will  be  treated  as  uncon- 
ditionally contraband,  a  step  which  they  regard  as  inconsistent  with 
the  law  and  practice  of  nations. 

In  that  protest  it  was  stated  that  His  Majesty's  Government  does 
not  contest  that  in  particular  circumstances  provisions  may  acquire  a 
contraband  character,  as,  for  instance,  if  they  should  be  consigned  direct 
to  the  army  or  fleet  of  a  belligerent,  or  to  a  port  where  such  fleet  may 
be  lying,  or  if  facts  should  exist  raising  the  presumption  that  they  are 
about  to  be  employed  in  victualling  the  fleet  or  forces  of  the  enemy. 

In  such  cases  it  is  not  denied  that  the  other  belligerent  would  be 
entitled  to  seize  the  provisions  as  contraband  of  war,  on  the  ground 
that  they  would  afford  material  assistance  towards  the  carrying  on  of 
warlike  operations. 

They  could  not,  however,  admit  that  if  such  provisions  were  con- 
signed to  the  port  of  a  belligerent  (even  though  it  should  be  a  port  of 
naval  equipment),  they  must,  on  that  ground  alone,  be  of  necessity 
regarded  as  contraband  of  war. 

In  the  view  of  His  Majesty's  Government  the  test  appeared  to  be 
whether  there  are  circumstances  relating  to  any  particular  cargo  to 
show  that  it  is  destined  for  military  or  naval  use. 

His  Majesty's  Government  further  pointed  out  that  the  decision  of 
the  prize  court  of  captor  in  such  matters,  in  order  to  be  binding  on 
neutral  states,  must  be  in  accordance  with  recognised  rules  and  prin- 
ciples of  International  Law  and  procedure. 

They  therefore  felt  themselves  bound  to  reserve  their  rights  by  pro- 
testing at  once  against  the  doctrine  that  it  is  for  the  belligerent  to 
decide  that  certain  articles  or  classes  of  articles  are,  as  a  matter  of 
course  and  without  reference  to  the  considerations  above  referred  to, 
to  be  dealt  with  as  contraband  of  war,  regardless  of  the  well-established 


502  NEUTRALITY.  [PART  IV. 

rights  of  neutrals;  nor  would  they  consider  themselves  bound  to  recog- 
nise as  valid  the  decision  of  any  prize  court  which  violated  these  rights, 
or  was  otherwise  not  in  conformity  with  the  recognised  principles  of 
International  Law. 

I  have,  etc. 

Lansdowne. 

The  position  of  Great  Britain  was  also  clearly  stated  in  a 
communication  to  the  British  representative  in  Eussia :  l 

It  has  been  held  by  this  country,  and  our  officers  have  been  so  in- 
structed, that  the  term  "  Contraband  of  War "  includes  only  articles 
having  belligerent  destination  and  purpose.  Such  articles  have  been 
classed  under  two  heads: 

1.  Those  that  are  primarily  and  ordinarily  used  for  military  pur- 
poses in  time  of  war,  e.  g.,  arms  and  munitions  of  war,  military  mate- 
rial, etc.,  articles  of  this  kind  being  usually  described  as  absolutely 
contraband. 

2.  Those  that  may  be,  and  are,  used  for  peaceful  or  warlike  pur- 
poses, according  to  circumstances,  such  articles  being  usually  described 
as  conditionally  contraband. 

On  August  30,  1904,  the  United  States  Government  made 
known  to  its  Ambassador  at  St.  Petersburg  its  position  on  cer- 
tain questions  relating  to  contraband. 

The  letter  is  as  follows: 

No.    143. 

Department  of  State,  Washington,  August  30,  1904. 
His  Excellency  Robert  S.  McCormick,  etc., 

St.  Petersburg. 
Sir: 

I  have  the  honour  to  acknowledge  the  receipt  of  your  No.  176,  of 
the  10th  instant. 

The  Department  has  carefully  considered  the  note  of  the  Russian 
Minister  for  Foreign  Affairs,  dated  July  27th  last,  a  copy  of  which  is 
enclosed  with  your  despatch,  with  reference  to  the  decision  of  the  prize 
court  in  the  case  of  the  steamship  Arabia,  containing  American  cargo, 
seized  by  the  Russian  naval  forces  and  sent  to  Vladivostok  for  ad- 
judication. 

As  communicated  to  you  by  the  minister,  the  decision  of  the  Court 

1  Marquis  of  Lansdowne  to  Sir  C.  Hardinge,  August  10,  1904.  Parliamentary 
Papers,  Russia,  No.  1  (1905),  p.  13. 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN   ATTITUDE.  503 

was  "that  the  steamer  Arabia  was  lawfully  seized;  that  the  cargo, 
composed  of  railway  material  and  flour,  weighing  about  2,360,000  livres, 
destined  to  Japanese  ports  and  addressed  to  different  commercial  houses 
in  said  ports,  constitutes  contraband  of  war;  that  such  cargo  bound 
for  Japanese  ports  should  be  confiscated  as  being  lawful  prize." 

In  communicating  the  said  decision  the  minister  observed,  in  re- 
sponse to  the  request  of  this  Government  for  the  release  of  the  non- 
contraband  portion  of  the  cargo,  that  the  question  could  only  be  de- 
cided through  judicial  channels  on  the  basis  of  a  decision  of  the  prize 
court. 

This  is  the  first  authentic  information  which  the  Department  has 
received  of  the  precise  grounds  on  which  the  Prize  Court  decided  to 
confiscate  the  railway  material  and  flour  in  question.  The  judgment  of 
confiscation  appears  to  be  found  on  the  mere  fact  that  the  goods  in 
question  were  bound  for  Japanese  ports  and  addressed  to  various  com- 
mercial houses  in  said  ports.  In  view  of  its  well-known  attitude  it 
should  hardly  seem  necessary  to  say  that  the  Government  of  the 
United  States  is  unable  to  admit  the  validity  of  the  judgment, 
which  appears  to  have  been  rendered  in  disregard  of  the  settled  law 
of  nations  in  respect  to  what  constitutes  contraband  of  war.  If  the 
judgment  and  the  communication  accompanying  its  transmission  are  to 
be  taken  as  an  expression  of  the  attitude  of  His  Imperial  Majesty's 
Government,  and  as  an  interpretation  of  the  Russian  Imperial  Order  of 
February  29  last,  it  raises  a  question  of  momentous  import  in  its  bear- 
ing on  the  rights  of  neutral  commerce. 

The  Russian  Imperial  Order  denounces  as  absolutely  contraband  of 
war  telegraph,  telephone,  and  railway  materials,  and  fuel  of  all  kinds, 
without  regard  to  the  question  whether  destined  for  military  or  for 
purely  pacific  and  industrial  uses. 

Clause  5,  Art.  X.,  of  the  Imperial  Order  denounces  as  contraband  of 
war  "  all  articles  destined  for  war  on  land  or  sea,  as  well  as  rice,  pro- 
visions, and  horses,  beasts  of  burden,  and  others  (autres)  capable  of 
serving  a  warlike  purpose,  and  if  they  are  transported  on  account  of 
or  to  the  destination  of  the  enemy." 

The  ambiguity  of  meaning  which  characterises  the  language  of  this 
clause,  lending  itself  to  a  double  interpretation,  left  its  real  intendment 
doubtful.  The  vagueness  of  the  language,  used  in  so  important  a  mat- 
ter, where  a  just  regard  for  the  rights  of  neutral  commerce  required 
that  it  should  be  clear  and  explicit,  could  not  fail  to  excite  inquiry 
among  American  shippers  who,  left  in  doubt  as  to  the  significance 
attributed  by  His  Imperial  Majesty's  Government  to  the  word  "  enemy  " 
— uncertain  as  to  whether  it  meant  "  enemy  government  or  forces  "  or 
"  enemy  ports  or  territory  " — have  been  compelled  to  refuse  the  shipment 


504  NEUTRALITY.  [PART  IV. 

of  goods  of  any  character  to  Japanese  ports.  The  very  obscurity  of 
the  terms  used  seemed  to  contain  a  destructive  menace,  even  to  legiti- 
mate American  commerce. 

In  the  interpretation  of  clause  10  of  Art.  V.,  and  having  regard  to 
the  traditional  attitude  of  His  Imperial  Majesty's  Government,  as  well 
as  to  the  established  rule  of  International  Law,  with  respect  to  goods 
which  a  belligerent  may  or  may  not  treat  as  contraband-  of  war,  it 
seemed  to  the  Government  of  the  United  States  incredible  that  the  word 
"  autres "  or  the  word  "  l'ennemi "  could  be  intended  to  include,  as 
contraband  of  war,  food-stuffs,  fuel,  cotton,  and  all  "  other "  articles 
destined  to  Japanese  ports,  irrespective  of  the  question  whether  they 
were  intended  for  the  support  of  a  noncombatant  population  or  for 
the  use  of  the  military  or  naval  forces.  In  its  circular  of  June  10  last, 
communicated  by  you  to  the  Russian  Government,  the  Department  in- 
terpreted the  word  "enemy"  in  a  mitigated  sense,  as  well  as  in  accord- 
ance with  the  enlightened  and  humane  principles  of  international  law, 
and  therefore  it  treated  the  word  "  enemy,'"  as  used  in  the  context,  as 
meaning  "  enemy  Government  or  forces "  and  not  the  "  enemy  ports 
or  territory." 

But  if  a  benign  interpretation  was  placed  on  the  language  used,  it 
is  because  such  an  interpretation  was  due  to  the  Russian  Government, 
between  whom  and  the  United  States  a  most  valued  and  unbroken 
friendship  has  always  existed,  and  it  was  no  less  due  to  the  commerce 
of  the  latter,  inasmuch  as  the  broad  interpretation  of  the  language 
used  would  imply  a  total  inhibition  of  legitimate  commerce  between 
Japan  and  the  United  States,  which  it  would  be  impossible  for  the 
latter  to  acquiesce  in. 

Whatever  doubt  could  exist  as  to  the  meaning  of  the  Imperial  Order 
has  been  apparently  removed  by  the  inclosure  in  your  despatch  of  the 
note  from  Count  Lamsdorff,  stating  tersely  and  simply  the  sentence  of 
the  prize  court.  The  communication  of  the  decision  was  made  in  un- 
qualified terms,  and  the  Department  is  therefore  constrained  to  take 
notice  of  the  principle  on  which  the  condemnation  is  based,  and  which 
it  is  impossible  for  the  United  States  to  accept  as  indicating  either  a 
principle  of  law  or  a  policy  which  a  belligerent  State  may  lawfully 
enforce  or  pursue  towards  the  United  States  as  a  neutral. 

With  respect  to  articles  and  material  for  telegraphic  and  telephonic 
installations,  unnecessary  hardship  is  imposed  by  treating  them  all  as 
contraband  of  war,  even  those  articles  which  are  evidently  and  unques- 
tionably intended  for  merely  domestic  or  industrial  uses. 

With  respect  to  railway  materials,  the  judgment  of  the  Court  ap- 
pears to  proceed  in  plain  violation  of  the  terms  of  the  Imperial  Order, 
according  to  which  they  are  to  be  deemed  to  be  contraband  of  war  only 


CHAP.  IV.,  SECT.  II.]      THE    RUSSIAN   ATTITUDE.  505 

if  intended  for  the  construction  of  railways.  The  United  States  Gov- 
ernment regrets  that  it  could  not  concede  that  telephonic,  telegraphic, 
and  railway  materials  are  confiscable  simply  because  destined  to  the 
open  commercial  ports  of  a  belligerent. 

When  war  exists  between  powerful  States  it  is  vital  to  the  legitimate 
maritime  commerce  of  neutral  States  that  there  be  no  relaxation  of  the 
rule — no  deviation  from  the  criterion — for  determining  what  constitutes 
contraband  of  war  lawfully  subject  to  belligerent  capture,  namely,  war* 
like  nature,  use,  and  destination.  Articles  which,  like  arms  and  ammu- 
nition, are  by  their  nature  of  self-evident  warlike  use  are  contraband 
of  war  if  destined  to  enemy  territory,  but  articles  which,  like  coal, 
cotton,  and  provisions,  though  of  ordinarily  innocent  are  capable  of 
warlike  use,  are  not  subject  to  capture  and  confiscation  unless  shown 
by  evidence  to  be  actually  destined  for  the  military  or  naval  forces  of 
a  belligerent. 

This  substantiative  principle  of  the  law  of  nations  cannot  be  over- 
ridden by  a  technical  rule  of  the  Prize  Court  that  the  owners  of  the 
captured  cargo  must  prove  that  no  part  of  it  may  eventually  come  to 
the  hands  of  the  enemy  forces.  The  proof  is  of  an  impossible  nature, 
and  it  cannot  be  admitted  that  the  absence  of  proof,  in  its  nature 
impossible  to  make,  can  justify  the  seizure  and  condemnation.  If  it 
were  otherwise  all  neutral  commerce  with  the  people  of  a  belligerent 
State  would  be  impossible;  the  innocent  would  suffer  inevitable  con- 
demnation with  the  guilty. 

The  established  principle  of  discrimination  between  contraband  and 
non-contraband  goods  admits  of  no  relaxation  or  refinement.  It  must 
be  either  inflexibly  adhered  to  or  abandoned  by  all  nations.  There  is 
and  can  be  no  middle  ground. 

The  criterion  of  warlike  usefulness  and  destination  has  been  adopted 
by  the  common  consent  of  civilised  nations  after  centuries  of  struggle, 
in  which  each  belligerent  made  indiscriminate  warfare  upon  all  com- 
merce of  all  neutral  States,  with  the  people  of  the  other  belligerent, 
and  which  led  to  reprisals  as  the  mildest  available  remedy. 

If  the  principle  which  appears  to  have  been  declared  by  the  Vladi- 
vostok Prize  Court,  and  which  has  not  so  far  been  disavowed  or  ex- 
plained by  His  Imperial  Majesty's  Government,  is  acquiesced  in,  it 
means,  if  carried  into  full  execution,  the  complete  destruction  of  all 
neutral  commerce  with  non-combatant  population  of  Japan;  it  obviates 
the  necessity  of  blockades;  it  renders  meaningless  the  principle  of  the 
Declaration  of  Paris,  set  forth  in  the  Imperial  Order  of  February  29 
last,  that  a  blockade  in  order  to  be  obligatory  must  be  effective;  it 
obliterates  all  distinction  between  commerce  in  contraband  and  non- 
contraband  goods,  and  is  in  effect  a  declaration  of  war  against  commerce 


506  NEUTRALITY.  [PART  IV. 

of  every  description   between  the  people  of  a   neutral  and  those  of  a 
belligerent  State. 

You  will  express  to  Count  Lamsdorff  the  deep  regret  and  grave  con- 
cern with  which  the  Government  of  the  United  States  has  received  his 
unqualified  communication  of  the  decision  of  the  Prize  Court.  You  will 
make  earnest  protest  against  it,  and  say  that  the  Government  of  the 
United  States  regrets  its  complete  inability  to  recognise  the  principle 
of  that  decision,  and  still  less  to  acquiesce  in  it  as  a  policy. 

I  have  the  honour  to  be,  sir,  your  obedient  servant, 

John  Hay. 

The  American  Ambassador  on  September  21  sent  the  fol- 
lowing reply: 

(No.  186.) 

American  Embassy,  St.  Petersburg,  September  21,  1904. 
Sir: 

I  have  the  honour  to  confirm  my  cablegram  of  the  19th,  with  refer- 
ence to  the  attitude  of  the  Russian  Government  on  the  subject  of  con- 
traband of  war,  and  to  transmit  to  you  a  copy  of  a  memorandum 
handed  me  by  Count  Lamsdorff,  practically  reiterating  what  he  had 
said  to  me  on  former  occasions  with  reference  to  any  discussion  of  the 
facts  or  of  the  principle  involved  in  the  seizure  and  condemnation  by 
the  prize  court  at  Vladivostok  of  that  part  of  the  cargoes  of  these  two 
ships  which  were  consigned  to  merchants  in  open  Japanese   ports. 

Count  Lamsdorff  was  not  prepared  to  take  any  issue  with  me  on 
the  declarations  and  principles  contained  in  your  circular  note  (circular 
of  June  10,  1904,  printed  ante)  and  your  instructions,  No.  143,  of  August 
30  (printed  ante),  a  copy  of  the  former  having  been  handed  to  him, 
and  the  contents  of  the  latter  having  been  transmitted  to  him  prac- 
tically in  extenso,  as  well  as  the  contents  of  your  instruction  on  the. 
subject  of  the  seizure  of  the  cargo  of  the  Arabia. 

Count  Lamsdorff  said,  in  addition  to  what  I  have  already  trans- 
mitted to  you  by  cable,  that  to  unconditionally  accept  as  non-contraband 
all  merchandise  not  universally  accepted  or  described  in  their  own  rules 
as  such,  would  open  the  door  to  contractors  in  Japan  to  import  food- 
stuffs and  other  merchandise  without  limit  for  account  of  the  Japa- 
nese Government,  that  is,  on  account  of  or  in  destination  of  the  enemy. 
That  the  Russian  Government  could  not  but  consider  as  contraband  a 
cargo  of  flour  consigned  to  a  port  at  which  was  quartered  a  large  body 
of  troops,  and  that,  extending  this  principle,  the  ultimate  destination 
of  cargo  had  to  be  taken  into  consideration,  although  its  direct  con- 
signment might  be  to  a  merchant  in  an  open  port. 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN   ATTITUDE.  507 

This  statement,  with  a  copy  of  the  aide-memoire,  which  is  here- 
with enclosed,  will  enable  you  to  understand  the  position  of  the  Rus- 
sian Government  at  this  time. 

The  only  reply  was  that  it  meant,  practically,  abrogation  of  the 
principle  "  that  the  blockade,  in  order  to  be  obligatory,  must  be  ef- 
fective," and  relieved  Russia  of  the  necessity  of  maintaining  one.  To 
this  the  reply  was  that  nobody  would  be  so  naive  as  to  consign  mer- 
chandise not  prima  facie  contraband,  although  intended  for  the  enemy, 
to  the  destination  of  the  enemy,  substituting  therefore  a  middleman  in 
the  shape  of  the  merchant  in  the  open  port.  He  added  here,  as  he 
repeated  several  times,  that  we  would  see  that  in  the  future  there 
would  be  less  ground  for  complaint  and  that  it  was  far  from  the  de- 
sire of  the  Russian  Government  to  place  any  obstacle  in  the  way  of 
legitimate  commerce  with  Japan,  but  that  they  would  be  compelled 
to  take  such  steps  as  would  be  necessary  to  prevent  supplies  of  any 
character  ultimately  intended  for  the  use  of  the  enemy  from  reach- 
ing their  destination.  Several  notes  written  on  the  subject,  as  well 
as  a  circular  note  of  June  10,  had  been  handed  Professor  Martens, 
who  considered  the  representation  made  therein  when  the  case  of  the 
Arabia  and  Calchas  came  before  the  admiralty  court  of  St.  Peters- 
burg. 

The  Eussian  Government  admitted  that  provisions  might  be 
regarded  as  conditionally  contraband. 

The  British  Government  expressed  its  approval  and  com- 
mented on  the  matter. 

(Sir  C.  Hardinge  to  Count  Lamsdorff.) 

St.  Petersburg,  September  28   (October  11),  1904. 

M.   LE   COMTE: 

I  duly  reported  to  His  Majesty's  Government  that  Your  Excellency 
had  informed  me  that  the  Russian  Government  have,  in  consequence 
of  the  decision  of  the  Commission  appointed  by  Imperial  Order  under 
the  Presidency  of  Professor  Martens,  to  study  the  question  of  con- 
traband of  war,  issued  supplementary  instructions  to  Naval  Com- 
manders and  Naval  Prize  Courts,  defining  the  interpretation  of  sec- 
tion 10  of  Art.  VI.  of  the  Regulation  of  the  27th  February  last. 
According  to  the  supplementary  instructions,  the  conditionally  contra- 
band nature  of  rice  and  provisions,  used  for  peaceful  or  warlike 
purposes  according  to  circumstances,  is  admitted  by  the  Russian  Gov- 
ernment. 

I  am  now  instructed  by  the  Marquis  of  Lansdowne  to  inform  Your 


508  NEUTRALITY.  [PART  IV. 

Excellency  that  His  Majesty's  Government  desires  to  acknowledge  the 
friendly  spirit  in  which  their  representations  in  this  matter  have  been 
met  by  the  Russian  Government.  They  learn  with  satisfaction  that 
it  is  not  intended  to  treat  rice  and  provisions  as  unconditionally  con- 
traband of  war,  and  they  trust  that  Your  Excellency's  anticipation 
(which  I  mentioned  to  Lord  Lansdowne),  that  the  decision  arrived 
at   will   tend   to   avoid  difficulties    in   the    future,    may   be   realised. 

His  Majesty's  Government  note  that,  in  the  view  of  the  Russian 
Government,  such  articles  are  not  necessarily  free  from  seizure  and 
condemnation  as  contraband  of  war  merely  because  they  are  addressed 
to  private  firms  or  individuals  in  the  enemy's  country,  the  Russian 
Government  holding  that  they  may,  nevertheless,  be  in  reality  intended 
for   the   military    or   naval    forces   of   the   enemy. 

While  His  Majesty's  Government  does  not  contend  that  the  mere 
fact  that  the  consignee  is  a  private  person  should  necessarily  give  im- 
munity from  capture,  they  hold,  on  the  other  hand,  that  to  take  the 
vessel  for  adjudication  merely  because  the  destination  is  the  enemy's 
country  would  be  vexatious  and  constitute  an  unwarrantable  inter- 
ference with  neutral  commerce.  To  render  a  vessel  liable  to  such 
treatment  there  should,  in  the  opinion  of  His  Majesty's  Government, 
be  circumstances  giving  rise  to  a  reasonable  suspicion  that  the  provi- 
sions are  for  the  enemy's  forces,  and  it  is  in  such  a  case  for  the 
captor  to  show  that  the  grounds  of  suspicion  are  adequate  and  to  es- 
tablish the  fact  of  destination  for  the  enemy's  forces  before  attempt- 
ing to  procure  their  condemnation. 

In  bringing  these  views  to  Your  Excellency's  notice,  I  am  to  state 
that,  for  the  reason  mentioned,  His  Majesty's  Government  trust  that 
the  instructions  now  issued  will  be  interpreted  in  a  liberal  and  con- 
siderate spirit  by  the  Naval  Commanders  and  the  Prize  Court  to  whom 
they   are   addressed. 

I  am  to  add,  at  the  same  time,  that  His  Majesty's  Government 
cannot  refrain  from  expressing  their  regret  that  the  same  principle 
has,  so  far,  not  been  admitted  in  the  case  of  certain  other  commodities 
enumerated  in  the  Regulations  issued  in  February  last  such,  for  ex- 
ample, as  coal  and  raw  cotton,  which  clearly  appear  to  be  susceptible 
of  use  for  other  than  warlike  purposes.  They  cherish,  however,  the 
hope  that  the  views  which  His  Majesty's  Government  have  already  ex- 
pressed on  this  subject  may  receive  favourable  consideration  at  the 
hands  of  the  Russian  Government  and  that  the  principle  of  condi- 
tional contraband,  which  has  been  admitted  by  the  Russian  Govern- 
ment, may  receive  still  further  extension  in  its  application. 

I  avail,  etc., 

(Signed)     Charles   Hardinge. 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN   ATTITUDE.  509 

In  consequence  of  the  questions  and  protests,  interpretations 
and  modifications  of  the  rules  were  made.  In  the  Journal  de 
Saint  Petersburg  of  September  30,  1904,  the  following  appeared : 

In  consequence  of  doubts  which  have  arisen  as  to  the  interpretation 
of  Art.  VI.,  section  10,  of  the  regulations  respecting  contraband  of 
war,  it  has  been  resolved,  as  we  are  in  a  position  to  announce,  that 
the  articles  in  regard  to  which  no  decision  has  been  taken  shall  be 
considered  as  contraband  of  war  if  they  are  destined  for: 

The  government  of  the  belligerent  powers; 

Their  administrations ; 

Their  army;   or 

Their  purveyors. 

In  cases  where  they  are  addressed  to  private  individuals  these  arti- 
cles shall  not  be  considered  as  contraband  of  war. 

Vessels  shall  only  be  confiscated  in  cases  where  prohibited  mer- 
chandise forms  more  than  half  of  the  cargo. 

In  the  contrary  case  only  the  cargo  shall  be  confiscated. 

All  possible  measures  have  thus  been  taken  to  insure  freedom  of 
commerce  to  neutral   powers. 

It  is  to  be  hoped  that  the  Powers  will  appreciate  the  considerable 
latitude  which  is  at  present  allowed  to  the  free  movement  of  their 
commerce  and  will  not  give  occasion  to  reproach  them  with  abuses 
relative  to  the  Regulations  on  Contraband  of  War  (Parliamentary 
Papers,  Russia,  No.  1,  1905,  p.  23). 

The  Kussian  rules  relating  to  conditional  contraband  re- 
ceived further  consideration  by  the  British  Government.1  The 
following  letter  indicates  the  position  taken: 

Sir  C.  Hardinge  to  Count  Lamsdorff. 

St.  Petersburg,  October  9,  1904. 
M.  le  Comte: 

On  the  16th  of  August  I  had  the  honour  to  communicate  to  Your 
Excellency  the  substance  of  a  despatch  which  I  had  received  from  the 
Marquis  Lansdowne,  in  which  the  views  of  His  Majesty's  Government 
were  very  clearly  expressed  on  *he  subject  of  the  treatment  by  the  Rus- 
sian Government  as  unconditional  contraband  of  an  extensive  category 
of  articles  enumerated  under  sections  8  and  10  of  Rule  6  of  the 
Regulations  published  by  the  Russian  Government  on  the  14th  Feb- 
ruary of  this  year.     In  this  statement  of  the  views  of  His  Majesty's 

1  Parliamentary  Papers,  Russia,  No.  1  (1905),  p.  26. 


510  NEUTRALITY.  [PART  IV. 

Government,  Lord  Lansdowne  explained  the  grounds  upon  which  it 
was  impossible  to  admit  the  claims  of  the  Russian  Government,  and 
denned  the  measures  which  His  Majesty's  Government  would  be  re- 
luctantly compelled  to  take  in  the  event  of  the  interests  of  British 
subjects  suffering  by  the  application  of  these  rules. 

It  was  with  much  satisfaction  that  I  received  on  the  16th  ultimo 
a  verbal  communication  from  Your  Excellency  to  the  effect  that  the 
principle  of  conditional  contraband  was  admitted  by  the  Russian  Gov- 
ernment, and  that  all  the  articles  mentioned  in  paragraph  10  of 
Art  VI.  of  the  Rules  of  the  14th  February,  1904,  with  the  exception 
of  horses  and  beasts  of  burden,  had  been  recognised  as  articles  of  a 
conditionally  contraband  nature. 

I  have  since  had  the  honour  to  point  out  to  Your  Excellency  that 
the  principle  of  conditional  contraband  having  been  admitted  by  the 
Russian  Government,  the  application  of  this  principle  could  not  be 
logically  withheld  from  coal,  which,  though  essentially  contraband  when 
used  for  warlike  objects,  has  a  much  wider  use  for  peaceful  purposes, 
and,  being  manufactures,  enjoys  when  so  employed  a  perfectly  inno- 
cent character. 

In  reply  to  my  representation,  Your  Excellency  has  been  so  good 
as  to  inform  me  that  the  conclusions  of  the  Ministry  for  Foreign  Af- 
fairs upon  the  question  of  principle  raised  by  me  have  been  com- 
municated to  the  Ministry  of  Marine  for  their  consideration,  and  I 
can  only  hope  that  a  solution  of  this  question  may  be  arrived  at  in 
accordance  with  international  usage,  and  that  the  instructions  already 
issued  to  Naval  Commanders,  and  Prize  Courts  may  be  extended  so  as 
to  include  as  conditionally  contraband  all  articles  of  dual  use  when 
not  destined  for  the  belligerent  forces  of  the  enemy. 

The  new  doctrine,  which  is  in  complete  contradiction  to  the  law 
and  practice  of  nations  sanctioned  by  international  usage,  and  which 
is  entirely  contrary  to  the  former  views  of  the  Russian  Government, 
viz.,  that  coal  and  fuel  of  every  kind  are  contraband,  irrespective  of 
their  destination,  and  that  the  seizure  of  cargoes,  or  the  vessels  con- 
taining them,  upon  the  ground  that  they  include  such  articles  is 
justifiable  in  International  Law,  is  one  which  it  is  impossible  for  His 
Majesty's  Government  to  admit.  It  has  been  suggested  to  me  by  Your 
Excellency  that  in  view  of  the  fact  that  Russian  warships  proceed- 
ing to  the  Far  East  are  not  allowed  to  purchase  coal  in  British  ports 
it  could  hardly  be  claimed  that  British  merchant  vessels  should  have 
the  right  to  carry  coal  to  the  ports  of  the  enemy,  even  if  it  is  not 
destined  for  warlike  purposes.  The  reply  to  this  suggestion  is  obvious. 
An  article  of  commerce  may  be  so  essential  for  hostile  purposes  that 
no  warship  should  be  supplied  with  it  in  neutral  waters,  and  yet  so 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN  ATTITUDE.  511 

essential  for  the  ordinary  purposes  of  civil  life  that  it  should  not  be 
prevented  from  reaching  the  peaceful  inhabitants  of  belligerent  coun- 
tries. The  dual  character  of  coal,  as  contraband  of  war,  forms  a  very 
apt  illustration  of  the  above. 

There  is  another  aspect  of  this  question  to  which  I  would  invite 
Your  Excellency's  attention.  From  the  enormous  quantities  of  coal 
which  arrive  daily  in  Russia  from  Great  Britain,  for  both  peaceful 
and  warlike  purposes  it  is  evident  that  the  British  trade  in  coal 
is  of  very  great  importance.  It  is  equally  certain  that  the  im- 
portance of  this  trade  is  not  confined  to  export  to  Russia,  and  that 
very  large  exports  of  coal  to  Japan,  for  purposes  both  of  peace  and 
war,  take  place.  Your  Excellency  will,  I  am  confident,  admit  that 
the  fact  of  the  Governments  of  Russia  and  Japan  being  at  war  is 
not  in  itself  a  sufficient  reason  why  the  peaceful  commerce  between 
Great  Britain  and  commercial  houses  in  Japan  should  be  treated 
with  such  severity  as  to  render  commerce  both  dangerous  and  even 
prohibitive. 

So,  also,  as  regards  raw  cotton,  which,  by  Imperial  Order  on  the 
21st  April,  was  declared  to  be  absolute  contraband  of  war.  Your  Ex- 
cellency may  not  be  aware  that  British  India  is  by  far  the  largest  im- 
porter of  raw  cotton  into  Japan,  the  quantities  imported  in  1901  and 
1902  being  more  than  double  those  imported  from  the  United  States 
of  America  or  from  any  other  country,  while  the  value  of  raw  cot- 
ton sent  to  Japan  from  India  in  each  of  above  mentioned  years 
amounted  to  nearly  40,000,000  rubles  and  one-half  of  the  total  value 
of  all  the  cotton  imported  into  Japan.  The  quantity  of  raw  cotton 
that  might  be  utilised  for  explosives  would  be  infinitesimal  in  com- 
parison with  the  bulk  of  the  cotton  exported  from  India  to  Japan  for 
peaceful  purposes,  and  to  treat  harmless  cargoes  of  this  latter  de- 
scription as  unconditionally  contraband  would  be  to  subject  a  branch 
of  innocent  commerce  which  is  specially  important  in  the  Far  East 
to  a  most  unwarrantable  interference. 

As  I  have  already  had  the  honour  of  explaining  to  Your  Excel- 
lency, His  Majesty's  Government  have  no  desire  to  place  obstacles  in 
the  way  of  a  belligerent  desiring  to  take  reasonable  precautions  in 
order  to  prevent  his  enemy  from  receiving  supplies,  but  they  cannot 
admit  that  the  right  of  adopting  such  precautions  implies  a  conse- 
quential right  to  abolish  by  a  stroke  of  the  pen  long-established  dis- 
tinction between  articles  which  are  conditionally  and  those  which  are 
absolutely  contraband  of  war,  and  to  intercept  at  a  distance  from  the 
scene  of  operations  and  without  proof  of  their  ultimate  destination 
a  numerous  category  of  articles  in  themselves  of  an  innocent  descrip- 
tion  and   largely    dealt    in    by   neutral   Powers,   but    which    that    bel- 


512  NEUTRALITY.  [PART  IV. 

ligerent  may  have  announced  his  intention  of  regarding  as  uncondi- 
tional contraband  of  war. 

The  principle  of  conditional  contraband  has  already  been  recog- 
nised by  the  Russian  Government,  and  it  only  remains  to  extend  its 
application  to  coal,  cotton,  and  other  articles  which  may  be  used  for 
peaceful  or  warlike  purposes  according  to  circumstances.  Such  a 
measure  would  be  consistent  with  the  law  and  practice  of  nations  and 
with  the  well-established  rights  of  neutrals.  While  maintaining  the 
rights  of  a  belligerent,  the  rights  of  neutrals  would  be  respected,  and 
the  source  of  a  serious  and  unprofitable  controversy  would  be  removed. 

In  making  these  representations  to  Your  Excellency  in  accordance 
with  the  instructions  which  I  have  received  from  the  Marquis  of  Lans- 
downe,  I  am  convinced  that  you  will  give  this  matter  the  very  serious 
consideration  which  is  its  due,  and  I  trust  that  Your  Excellency  will 
be  in  a  position  to  inform  me  shortly  that  a  solution  has  been  ar- 
rived at  which  may  prove  satisfactory  to  both   Governments. 

I  avail,  etc.  ~  TT 

'  Charles  Hardinge. 

In  reply  to  the  British  Ambassador's  request  the  following 
interpretation  was  given  by  Russia :  * 

In  consequence  of  doubts  which  have  arisen  as  to  the  interpreta- 
tion of  Art.  VI.,  section  10,  of  the  Regulations  Respecting  Contra- 
band of  War,  it  has  been  resolved  by  the  Imperial  Government  that 
the  article  capable  of  serving  for  a  warlike  object,  and  not  specified 
in  sections  1  to  9  of  Art.  VI.,  as  well  as  rice  and  foodstuffs,  shall  be 
considered  as  contraband  of  war,  if  they  are  destined  for: 

The  Government  of  the  belligerent  Power; 

For  its  administration; 

For  its  army; 

For  its  fortresses; 

For  its  navy; 

For  its   naval  ports;   or 

For  its  purveyors. 

In  cases  where  they  are  addressed  to  private  individuals  these 
articles  shall  not  be  considered  as  contraband  of  war. 

In  all  cases  horses  and  beasts  of  burden  shall  be  considered  as  con- 
traband of  war.2 

In  interpreting  a  contract  entered  into  just  before  the 
Russo-Japanese  War,  and  involving  the  definition  of  contra- 

1  Parliamentary  Papers,  Russia,  No.  1  (1905),  p.  24.  2  Ibid.,  p.  27. 


CHAP.  IV.,  SECT.  II.]      THE   RUSSIAN   ATTITUDE.  513 

band,    the    following    statement    was    made    by    Chief-Justice 
Berkeley : 

The  contract  was  made  in  Hongkong,  and  therefore  in  the  absence 
of  evidence  to  the  contrary  which  I  could  act  upon  the  parties  must 
be  taken  to  have  used  the  expression  "  contraband  of  war "  in  the 
sense  in  which  it  is  understood  in  British  Courts  of  law,  which  is  its 
sense  in  International  Law.  It  cannot  be  successfully  contended  that 
provisions  would  be  regarded  by  British  Courts  of  law  as  uncondi- 
tional contraband  of  war,  or  that  there  is  any  likelihood  that  they 
will  ever  take  that  view.  Had  this  court  been  asked  at  any  time 
between  the  signing  of  the  charter  party  on  the  10th  of  February, 
1904,  and  the  issuing  of  the  Russian  declaration  to  construe  the 
meaning  of  the  words  "  contraband  of  war  "  it  cannot  be  doubted  that 
it  would  have  excluded  provisions  from  the  category  of  unconditional 
contraband.  It  is  contended,  however,  that  the  court  ought  to  place 
a  different  meaning  on  that  expression,  after,  and  in  view  of,  the 
terms  of  the  Russian  declaration,  inasmuch  as  Russia,  being  a  sov- 
ereign independent  Power,  has  a  prerogative  right  to  declare  whatever 
she  pleases  to  be  contraband  of  war  in  any  war  in  which  she  may  be 
engaged,  and  the  effect  of  the  Russian  declaration  being  to  make 
provisions  unconditionally  contraband,  the  master  of  the  ship  Prome- 
theus was  excused  from  loading  them  on  his  ship.  In  this  contention 
I  am  unable  to  concur.  In  the  view  which  I  take  of  the  effect  of  the 
Declaration  under  the  Treaty  of  Paris  of  1856,  and  of  the  agreement 
undertaken  by  the  several  powers  signatory  thereto  given  in  pro- 
tocol No.  24  not  to  depart  from  the  principles  enunciated  in  the 
Declaration,  I  think  that  Russia  was  not  at  liberty  to  declare  provi- 
sions unconditional  contraband  of  war,  and  that  her  declaration  in 
that  respect  could  not  affect  the  contract  between  the  parties  to  this 
charter  party,  even  supposing  it  could  be  held  that  contraband  of 
war  means,  as  used  in  the  charter  party,  whatever  Russia  may  con- 
sider as  such,  for  Russia,  having  been  a  party  to  the  solemn  declara- 
tion of  "  fixed  principles "  under  the  Treaty  of  Paris,  was  not  at 
liberty  to  disregard  those  principles  and  was  therefore  bound  to  recog- 
nise and  act  upon  the  generally  accepted  rule  of  international  law  that 
provisions  are  not  unconditional  contraband.  (The  Osaka  Shoscn 
Co.  vs.  The  Prometheus.) 

It  is  evident  that  no  unvarying  list  of  articles  contraband 
of  war  can  be  made.  The  progress  of  invention  may  make  an 
article  previously   entirely   innocent  exceedingly   dangerous   to 


514  NEUTRALITY.  [PART  IV. 

the  belligerent  if  he  allows  it .  to  be  freely  transported.  The 
question  always  is,  how  essential  is  the  article  for  carrying  on 
the  war?  If  it  is  essential,  it  may  be  declared  contraband,  e.g., 
in  many  wars  sulphur  and  saltpetre  have  led  the  list  of  contra- 
band because  essential  in  the  making  of  gunpowder  and  not 
readily  obtained  in  all  places.  Charcoal,  on  the  other  hand, 
while  essential,  is  readily  obtainable  and  not  classed  as  contra- 
band. 

The  change  in  the  method  of  warfare  has  made  treatment 
of  coal  a  matter  of  much  moment.  France  did  not  regard  coal 
as  contraband  in  1859  or  in  1870,  and  other  States  took  the 
same  position.  It  may,  however,  easily  become  contraband  by 
destination  under  the  regulations  of  these  States. 

Certain  coal,  such  as  the  Cardiff  and  Pocahontas,  which 
are  peculiarly  adapted  for  use  on  war  vessels,  will  naturally  be 
more  liable  to  be  treated  as  contraband  than  ordinary  domestic 
coals. 

G.  G.  Phillimore  has  said  of  the  position  of  Eussia  in  the 
Russo-Japanese  War: 

The  Russian  attitude  with  regard  to  coal  is  in  direct  conflict  with 
her  declaration  of  1884,  at  the  West  African  Conference,  that  she 
would  never  recognise  coal  as  contraband.  While  no  doubt  a  State 
may  define  contraband  differently  on  different  occasions,  to  suit  the 
particular  circumstances  of  the  warfare  it  is  engaged  in,  it  cannot 
expect  other  States  to  acquiesce  in  its  refusal  to  recognise  the  general 
rules  governing  the  subject  which  it  has  formerly  accepted  and  which 
stand  on  a  basis  of  general  acceptance  in  practice.1 

The  Russian  Prize  Court  at  Vladivostock  in  1904  con- 
demned flour  and  railway  materials  consigned  to  merchants  at 
Japanese  ports  on  board  the  German  vessel  Arabia,  and  took 
similar  action  in  regard  to  the  British  steamer  Calchas.  The 
goods  on  these  vessels  were  consigned  by  United  States  mer- 
chants. 

Secretary  Hay  protested  against  the  seizure  and  condemna- 
tion, saying  that — 

1  The  Law  Magazine  and  Review,  No.  30,  p.  79. 


CHAP.  IV.,  SECT.  III.]      THE   BEAN-CAKE   QUESTION.  515 

In  view  of  its  well-known  attitude  it  should  hardly  seem  neces- 
sary to  say  that  the  Government  of  the  United  States  is  unable  to 
admit  the  validity  of  the  judgment  which  appears  to  have  been  ren- 
dered in  disregard  of  the  settled  law  of  nations  in  respect  to  what 
constitutes  contraband  of  war. 

Two  days  earlier  the  British  Government  had  stated  that 
proof  is  necessary  "  that  the  goods  are  intended  for  the  bellig- 
erent's naval  or  military  forces  before  they  can  be  considered 
as  contraband." 

The  appeal  in  the  case  of  the  decision  on  the  steamer  Cal- 
chas  was  taken  to  the  High  Admiralty  Court  at  St.  Peters- 
burg. That  court  handed  down  its  decision  on  June  13,  1905. 
The  decision  does  not  directly  recognise  the  category  of  con- 
ditional contraband;  but,  in  justifying  the  seizure  of  the  cotton 
and  timber,  maintains  by  an  extended  argument  that  there 
was  fair  evidence  that  the  cotton  was  destined  for  the  arsenal 
at  Kobe,  and  that  the  timber  was  destined  for  Japanese  mili- 
tary railways  and  telegraph  lines,  thus  introducing  the  prin- 
ciple of  destination  for  enemy  military  use  as  a  ground  of 
condemnation. 

In  the  report  of  the  British  Eoyal  Commission  on  Supply 
of  Food  and  Raw  Material  in  Time  of  War  is  enunciated  the 
following  opinion  formulated  by  Professor  Holland: 

Provisions  in  neutral  ships  may  be  intercepted  by  a  bellig- 
erent as  contraband  only  when,  being  suitable  for  the  purpose, 
they  are  on  their  way  to  a  port  of  naval  or  military  equipment 
belonging  to  the  enemy,  or  occupied  by  the  enemy's  naval  or 
military  forces,  or  to  the  enemy's  ships  at  sea,  or  when  they 
are  destined  for  the  relief  of  a  port  besieged  by  such  bellig- 
erent. 

Sect.  III.     The  Bean-Cake  Question. 

Before  entering  into  this  question,  the  Chinese  Regulations 
Concerning  Contraband  of  War  will  be  mentioned. 

According  to  the  Jiji's  Shanghai  correspondent,  the  Chinese 
Customs  at  Shanghai  have  issued  the,  following  proclamation : 


516  NEUTRALITY.  [PART  IV. 

"  In  compliance  with  the  instructions  of  the  Inspector-General  of  the 
Imperial  Maritime  Customs,  the  following  regulations  are  promulgated 
and  notified  to  the  parties  concerned: 

"  1.  Contraband  of  war  consisting  of  purely  military  requisites, 
such  as  arms,  ammunitions,  etc.,  bound  for  a  port  of  the  belligerent 
countries  or  of  the  area  of  hostilities,  shall  be  discharged  and  detained 
until  the  end  of  the  war. 

"  2.  Contraband  of  war  consisting  of  ordinary  commodities,  such  as 
flour,  clothes,  etc.,  may  be  transported,  at  the  risk  of  the  owners,  to  the 
ports  of  the  belligerent  countries,  there  being  no  need  of  interference  on 
the  part  of  the  Customs.  But  in  case  the  goods  are  bound  for  the 
scene  of  the  war,  they  shall  be  treated  as  military  stores  and  landed 
and  detained  until  the  end  of  the  war. 

"  3.  In  the  event  of  the  necessity  arising  of  landing  any  cargo  pass- 
ing through  Chinese  ports,  the  same  will  be  landed  and  stored  at  the 
expense  of  the  owners.  The  storage  of  the  goods  will  be  controlled  by 
the  Customs." 

The  Peking  correspondent  of  the  Jiji  reports  that  the  British  and 
the  American  Ministers  to  China,  on  behalf  of  the  merchants  of  their 
respective  countries,  have  recently  lodged  a  protest  with  the  Chinese 
Foreign  Office  to  the  effect  that  these  merchants  have  been  subjected 
to  serious  inconveniences  through  the  excessively  strict  application  of 
the  regulations  for  contraband  of  war,  an  application  which  practically 
amounts  to  the  prohibition  of  the  shipment  of  the  principal  export 
articles  intended  for  Japan  and  Russia.  The  Chinese  Government,  in 
reply,  stated  that  it  could  not  but  strictly  apply  the  said  regulations 
to  the  exports  for  the  two  belligerent  countries  owing  to  the  threaten- 
ing attitude  of  M.  Lessar,  Russian  Minister,  who,  in  a  note  recently 
forwarded  to  the  Peking  authorities,  alleged  that  the  latter  always 
favoured  Japan  by  acquiescing  in  the  exportation  of  contraband  of  war 
to  Japan  or  by  encouraging  the  mounted  bandits,  and  even  declared 
that  it  would  be  better  for  China  to  declare  war  against  Russia. 

Here  the  Affair  Concerning  the  Exportation  of  Bean-Cake 
and  Eggs  will  be  fully  described: 

At  the  end  of  March,  1904,  a  steamer  chartered  by  the 
Chefoo  branch  of  the  Mitsui  Bussan  Company  was  about  to  leave 
for  Japan  with  a  cargo  of  bean-cake  purchased  by  the  branch, 
when  the  local  customs  authorities  ordered  the  vessel  to  post- 
pone her  departure,  stating  that  they  were  then  asking  the 
opinion   of   the   central    authorities   as    to   whether   bean-cake 


CHAP.  IV.,  SECT.  III.]      THE    BEAN-CAKE    QUESTION.  517 

should  be  regarded  as  contraband  or  not.  The  Asahi's  corre- 
spondent understands  that  the  customs  authorities  were  in 
secret  communication  with  the  Eussian  Consul  at  Chefoo  in 
this  connection,  who  seems  to  have  submitted  the  question  to 
the  Russian  Minister  at  Peking,  who  again,  after  referring  the 
matter  to  St.  Petersburg,  communicated  to  Wai-wu-pu  to  pro- 
hibit the  exportation  of  those  articles.  The  Chefoo  Taotai  has 
also  asked  the  Chinese  Foreign  Office  for  instructions  in  the 
matter,  but  no  answer  has  yet  been  received  by  him  nor  by  the 
local  customs  authorities.  Meanwhile,  the  Russian  Consul  in- 
sists that  bean-cake,  being  available  for  fodder,  is  contraband 
of  war,  while  the  Japanese  Consul,  Mr.  Midzuno,  claims  that 
there  is  no  reference  whatever  in  the  Chinese  Neutrality  Regu- 
lations regarding  that  article. 

At  the  same  time,  the  Shanghai  Customs  also  prohibits  the 
exportation  of  beans,  eggs,  wheat,  bran,  and  some  other  provi- 
sions to  Japan. 

The  following  is  the  correspondence  from  Shanghai: 

The  commissioner  of  Customs  at  Shanghai  has  prohibited 
the  exportation  of  beans,  eggs,  and  some  other  provisions  to 
Japan.  This  undesirable  step  taken  by  the  Commissioner  of 
Customs  appears  to  have  come  from  the  following  two  facts: 
1.  That  it  is  provided  in  the  proclamation  of  neutrality  issued 
by  China  that  provisions  are  contraband.  2.  That  both  Rus- 
sia and  Japan  declared  provisions  as  contraband  when  they  are 
destined  to  the  hostile  navy  or  army.  But  the  provisions  being 
exported  to  Japan  cannot  be  said  simply  to  be  used  for  navy 
or  army. 

This  position  held  by  the  Chinese  Government  is  quite  un- 
reasonable. The  following  opinion  which  appeared  in  a  Japa- 
nese paper  is  worth  quoting  here : 

"  True,  Russia  in  her  declaration  includes  beans,  bean-cake, 
and  eggs  in  the  list  of  what  she  considers  contraband,  but  that 
is  a  declaration  that  Russia  has  made  to  suit  herself,  and  is 
no  more  binding  on  China  than  on  the  man  in  the  moon. 
China's  motives  may  be  to  uphold  her  neutrality;  but  as   a 


518  NEUTRALITY.  [PART  IV. 

neutral  country  she  should  be  guided  in  her  conduct  by  fair 
and  just  principles  internationally  recognised.  It  is  conse- 
quently outrageous  that  she  should  take  for  her  model  an  ex- 
ample set  by  a  belligerent,  who  would  naturally  formulate 
rules  that  would  bear  most  unfavourably  on  her  enemy.  If 
she  would  imitate  a  belligerent's  action,  China  should  have  fol- 
lowed Japan.  Japan,  by  her  proclaimed  rules,  regards  arms, 
ammunition,  and  other  articles  that  may  be  used  for  war  pur- 
poses, as  contraband  of  war  only  when  they  are  to  be  trans- 
ported through,  or  destined  for,  the  enemy's  territory,  or  for 
the  enemy's  army  and  navy,  while  articles  of  food  and  drink 
are  not  treated  as  contraband  at  all,  except  when  they  are 
destined  for  the  enemy's  forces,  and  also  when  their  destination 
shows  them  to  be  for  the  enemy's  use.  Nothing  could  be  more 
just  and  fair  than  this  rule,  if  observed  by  a  belligerent. 
Everybody  knows  that  there  is  no  possible  way  of  using  bean- 
cakes  for  war  purposes,  they  being  only  valuable  as  fertilisers. 
If  China  wants  to  be  so  scrupulous  about  maintaining  neutral- 
ity, this  journal  would  point  out  that  it  is  far  more  urgently 
incumbent  on  her  to  take  effective  steps  to  drive  out  Eussians 
from,  and  forbid  them  levying  war  supplies  within,  her  de- 
claredly neutral  territory. 

On  the  5th  of  April,  1904,  Consul  Midzuno  at  Chefoo 
informed  the  Japanese  Government  that  if  its  export  were 
stopped  during  the  war,  agriculture,  which  nowadays  depends 
on  the  bean-cake  as  a  fertiliser,  will  suffer  enormously. 

Thus  the  Chinese  prohibition  of  the  exportation  of  the 
above-mentioned  goods  has  evoked  much  opposition  from  the 
Japanese,  English,  American,  and  German  merchants  there. 
Mr.  Odagiri,  Japanese  Consul-General  at  Shanghai,  on  the  8th 
inst.  lodged  a  protest  in  this  connection  with  the  Chinese  au- 
thorities, who  replied  that  they  would  reconsider  the  matter 
in  the  case  of  eggs,  but  that  with  regard  to  the  remainder  of 
the  goods  the  authorities  had  acted  under  the  express  instruc- 
tions of  the  Central  Government,  and  could  not  therefore  com- 
ply with  the  request  of  the  Japanese  Consul-General. 


CHAP.  IV.,  SECT.  III.]      THE   BEAN-CAKE   QUESTION.  519 

Thereupon  the  Japanese  Government  lodged  a  strong  pro- 
test with  the  Chinese  Government. 

Several  times  the  Japanese  Minister  at  Peking  saw  Prince 
Ching  of  Wai-wa-pu,  and  urged  him  to  revoke  the  prohibition 
altogether. 

As  a  consequence  of  the  negotiations,  Wai-wa-pu  sent  an 
official  reply  to  our  government  on  the  30th  of  April,  stating 
(as  it  stands  in  the  official  note)  that  bean-cake  and  iron,  being 
ordinary  articles  of  merchandise,  can  be  exported  as  usual,  ex- 
cept to  the  theatre  of  war,  and  that  necessary  instructions  had 
been  given  to  the  local  authorities  concerned. 

The  following  is  the  notification  of  the  Shanghai  Customs 
relating  to  this  affair: 

Customs  Notification.     No.  610. 
Contraband  of  War. 

Such  products  as  beans,  beancake,  bran,  sesame  seed,  sesame  seed 
cake,  cotton  seed,  and  eggs  are  now  allowed  shipment  to  Japanese  or 
Russian  territory  not  in  the  fighting  sphere. 

In  every  case,  however,  when  shipment  is  permitted,  formal  consu- 
lar certificates  are  required,  certifying  that  the  goods  are  not  destined 
for  the  theatre  of  war,  and  stating  clearly  that  they  are  shipped  at 
the  owner's  risk. 

This  ruling  does  not  affect  produce  arriving  from  Newchwang  under 

bond. 

(Signed)     H.  E.  Hobson, 

Commissioner  of  Customs. 

Customs  House,  Shanghai,  27th  April,  1904. 

Customs  Notification.     No.  612. 
Treatment  of  Contraband  of  War  En  Route  to  Fighting 

Sphere  or  Ports  of  Belligerent  States. 
The  following  rules  are  published  by  order  of  the  Inspector- 
General  of  Customs  for  the  information  of  all  concerned: 

1.  If  the  contraband  consists  of  purely  warlike  supplies,  such  as 
arms  and  ammunition,  and  the  vessel  is  bound  to  a  port  in  either  of 
the  belligerent  States  or  to  the  fighting  sphere,  the  contraband  must  be 
landed  and  cannot  be  permitted  to  go  forward  until  the  war  is  ended. 

2.  If   the   contraband    consists   of   ordinary   commodities  which    all 


520  NEUTRALITY.  [PART  IV. 

classes  require,  such  as  bread  stuffs,  etc.,  it  need  not  be  interfered  with, 
but  may  go  forward  to  a  port  in  either  belligerent  State  at  the  owner's 
risk;  if  bound  to  a  fighting  sphere,  it  must  be  discharged  in  the  same 
way  as  warlike  supplies   ( 1 )   and  await  the  end  of  the  war. 

3.  Should  it  be  necessary  to  thus  land  and  detain  anything  passing 
through  a  Chinese  port  in  transit,  it  must  be  landed  and  stored  by  the 
consignee  of  the  ship  at  the  owner's  expense,  but  under  Customs  control. 

H.  Elgar  Hobson, 
Commissioner  of  Customs. 

Customs  House,  Shanghai,  7th  May,  1904. 

The  Japanese  authorities  have  also  received  a  telegram  from 
Mr.  Midzuno,  Japanese  Consul  at  Chefoo,  to  the  effect  that 
the  following  agreement  has  been  entered  into  between  the 
Japanese  Consul  and  the  Customs  authorities  at  that  port: 

(1)  That  prior  to  the  exportation  of  bean-cake  from  Chefoo,  either 
cash,  or  a  guarantee  by  a  provincial  bank  or  by  a  Chinese  merchant 
of  good  standing,  shall  be  deposited  by  the  exporter  with  the  Customs. 

(2)  That  whenever  bean-cake  is  exported  to  a  Japanese  port,  the 
Chinese  Consul  at  that  port  shall  make  inquiries  regarding  its  destina- 
tion, and  that  in  case  his  inquiries  reveal  the  correctness  of  its  regis- 
tered destination,  the  consul  will  at  once  communicate  the  matter  to 
the  Chefoo  Customs,  so  that  the  deposits  may  be  refunded.1 

Sect.  IV.     About  Rice. 

During  the  hostilities  between  France  and  China  there  arose 
some  difficult  questions,  relating  as  to  whether  rice  is  contra- 
band or  not.2 

During  the  late  war  there  took  place  an  interesting  case 
concerning  rice — the  Prometheus  case.  The  statement  of  the 
case  being  very  concisely  treated  in  Part  III.,  Chapter  I.,  is  also 
omitted  here. 

Sect.  V.     About  Tea. 

On  the  8th  of  March,  1904,  the  German  Minister  at  Tokyo 
wrote  a  letter  to  the  Japanese  Foreign  Minister,  Baron  Ko- 

1  The  Japan  Times,  May  2,  1904. 

2  See  the  Author's  Hostilities  entre  la  France  et  la  Chine  en  1884-1885,  et  Etude  des 
lois  de  Neutrahte  au  Japon  pendant  ces  Hostilite,  1901. 


CHAP.  IV.,  SECT.  V.]  ABOUT   TEA.  521 

mura,  asking  whether  provisions  shipped  to  a  Kussian  port 
would  be  considered  under  the  Japanese  Regulations  now  in 
force  as  being  contraband  goods,  even  if  not  destined  for  the 
use  of  the  enemy's  army  or  navy,  and  in  the  special  case  under 
consideration,  whether  tea  shipped  from  China  to  Odessa  and 
Nikolyewsk  would  be  regarded  as  contraband  of  war.    p 

Thereupon  Baron  Komura  referred  to  the  Minister  of  the 
Navy,  asking  if  it  was  better  not  to  consider  tea  destined  to 
Odessa  from  Hankow,  China,  as  contraband,  except  that  which 
may  be  proved  to  be  for  the  use  of  enemy's  army  or  navy,  and 
that  if  this  opinion  be  approved,  an  instruction  to  this  effect 
should  be  issued  to  the  naval  authorities. 

This  reference  was  sent  on  March  9th,  1904,  and  on  that 
day  the  Minister  of  the  Navy  answered  that  there  was  no 
objection  in  his  department,  and  that  an  instruction  in  this 
sense  would  soon  be  issued. 

On  the  18th  of  April,  1904,  Mr.  Yang,  Chinese  Minister  to 
Tokyo,  sent  a  letter  to  Baron  Komura,  asking  whether  tea  was 
considered  under  Art.  II.  of  the  Japanese  Naval  Instructions 
as  being  contraband  goods  or  not,  to  which  the  next  day  Baron 
Komura  replied  negatively,  adding  that  there  was  an  excep- 
tion of  that  destined  for  use  of  the  enemy's  army  and  navy. 

On  the  22nd  of  May,  1904,  Baron  Komura  despatched  in- 
structions to  the  Japanese  Consul  Eitani  at  Hankow  to  the 
effect  that  tea  was  considered  contraband  according  to  the 
Naval  Instruction  No.  I.  of  February  10th  of  that  year,  but 
that  that  would  be  exported  from  Hankow  to  European  Russia 
and  Odessa  would  be  treated  as  non-contraband  goods,  except 
such  as  may  be  proved  to  be  for  the  use  of  the  enemy's  army 
or  navy. 

In  the  same  month  of  the  same  year,  Herman  Kobritz,  an 
Austrian  subject  and  merchant  in  Hamburg,  applied  to  Mr. 
Odagiri,  Japanese  Consul-General  at  Shanghai,  through  their 
Consul-General,  for  permission  to  ship  about  150,000  cases  of 
Chinese  tea  from  Hankow  via  Nagasaki  to  Nikolajewsk  on  the 
Amur.    The  Austrian  Consul-General  visited  Mr.  Odagiri  with 


522  NEUTRALITY.  [PART  IV. 

Kobritz,  and  told  him  that  these  cases  of  tea  would  be  trans- 
ported from  Nikolajewsk  to  Moscow  in  European  Eussia. 
Thereupon,  Mr.  Odagiri  sent  a  letter  to  Baron  Komura  on  the 
21st  of  May,  giving  these  details  in  full,  and  adding  a  copy  of 
the  note  of  Kobritz,  to  ask  whether  the  petition  would  be 
adopted  by  the  Japanese  Government. 
The  note  is  as  follows : 

Herman  Kobritz,  the  Austrian  subject,  merchant  in  Hamburg,  ap- 
plied for  permission  to  ship  about  150,000  cases  of  Chinese  tea  from 
Hankow  via  Nagasaki  to  Nikola jewsk,  on  the  Amur.  He  gives  the 
most  positive  asurance  that  the  whole  quantity,  as  mentioned  above, 
would  be  forwarded  in  transit  from  Nikola  jewsk  to  Moscow  by  steamer 
up  the  Amur  river,  and  then  by  rail. 

The  purpose  of  the  intended  transaction  is  as  follows:  The  duty 
payable  at  the  Russian  Custom  Houses  in  Europe,  according  to  Sec.  20 
of  the  Russian  Customs  Tariff,  amounts  for  tea  (leaves  and  flowers)  per 
16  Kilogram-pud  to  Rubles  31.50  per  case  of  about  130  Russian  lbs.  to 
Rubles  102.35.  For  brick-tea  per  16  Kilogram- 1  pud  to  Rubles  19.50 
per  case  of  about  2000  Russian  lbs.  to  Rubles  97.50  in  case.  However, 
on  tea  that  had  been  sent  to  Moscow  via  Nikola  jewsk  and  Irkutsk — 
as  it  used  to  be  done  before  the  outbreak  of  war — the  duty  charged  at 
the  Customs  in  Irkutsk,  according  to  Sec.  20,  Alinea  1,  page  6  of  the 
Tariff,  only  amounted  to  for  teas  (leaves  and  flowers)  per  16  Kg.-l  Pud 
to  Rubles  19.50  per  case  of  about  130  Russian  lbs.  to  Rubles  63.35;  for 
brick-tea  to  Rubles  3.75  and  Rubles  18.75,  respectively. 

By  using  the  cheaper  route  via  Siberia,  and  thus  avoiding  the  higher 
rate  of  duty,  a  very  considerable  gain  would  be  realised,  which  for 
about  50,000  cases  flower-tea  @  39  Rubles  per  case  would  amount  to 
Rubles  1,950,000,  and  for  100,000  cases  brick-tea  @  78.75  Rubles  per 
case  to  Rubles  7,875,000,  or  a  total  gain  of  Rubles  9,825,000. 

The  following  facts  and  remarks  will  show  beyond  doubt  that  the 
exclusive  aim  in  projecting  the  above  transaction  is  merely  to  gain  the 
difference  in  the  rates  of  duty. 

(a)  According  to  advices  from  Moscow,  large  quantities  of  tea  are 
stored  at  Port  Arthur,  Dalny,  and  Kharbin,  which  cannot  reach  their 
destination  by  rail,  and  are  being  sold  at  auction  at  much  lower  prices 
than  the  original  cost. 

(b)  An  article  to  the  same  effect  is  contained  in  the  Shanghai 
Mercury  of  the  16th  of  May,  1904. 

(c)  Any  amount  of  tea  may  be  forwarded  to  Manchuria  by  land 
via  Kiachta. 


CHAP.  IV.;  SECT.  VI.]        ABOUT   KEROSENE    OIL.  523 

{d)  Finally,  Chinese  tea  may  be  imported  duty  free  into  Manchuria 
by  land  over  several  other  routes. 

The  route  via  Nikolajewsk  could  only  be  availed  of  during  the  months 
of  June,  July,  and  August,  and  even  in  that  period  there  is  usually, 
during  at  least  six  weeks,  low  water  in  the  Amur  River,  greatly  imped- 
ing the  transport  of  merchandise. 

As  the  scheme  is  exclusively  a  trade  operation,  and  does  not  tend 
towards  supplying  the  Russian  troops  with  tea,  it  is  hoped  that  the 
Imperial  Japanese  Government,  who  certainly  could  not  have  had  the 
intention  of  interfering  with  trade  and  commerce  in  general,  would  com- 
ply with  an  humble  request  to  be  allowed  to  carry  the  above  quantities 
of  tea  to  Nikolajewsk  without  risk  of  seizure. 

(Signed)     Hermann  Kobritz. 
Shanghai,  19th  May,  1904. 

This  letter  was  received  on  the  26th  by  Baron  Komura, 
and  his  reply  was  despatched  next  day  in*  the  sense  that  tea 
would  not  be  confiscated  except  in  the  case  of  Art.  II.  of  Naval 
Instruction,  and  it  not  being  examined  and  decided  whether 
it  applies  to  that  article  or  not,  the  Government  could  not  give 
permission  previously. 

Sect.  VI.     About  Kerosene  Oil. 

In  the  Order  of  the  Navy  Department  concerning  Contra- 
bands on  Feb.  10,  and  in  the  Art.  XIV.  of  the  Japanese  Prize 
Eegulation,  kerosene  oil  is  not  mentioned  in  the  list  of  goods. 
So,  on  Feb.  27,  the  Italian  Minister  sent  a  note,  asking  whether 
the  oil  should  come  in  the  category  of  contrabands. 

On  the  9th  of  February,  1904,  Japan  modified  its  list  of 
the  articles  of  contraband  of  war,  and  sent  the  following  letter 
to  Italian  Minister  at  Tokyo: 

Traduction. 
Monsieur  le  Comte: 

No.  3.  Par  ma  lettre  du  29  Fevrier,  1904,  j'ai  eu  l'honneur  d'in- 
former  la  Legation  Royale  que  le  Gouvernement  Imperial  ne  considerait 
pas  le  pgtrole  comme  contrebande  de  guerre. 

Ainsi  qu'il  vient  d'etre  notifie"  aujourd'hui  par  l'lnstruction  No.  1 
du  Ministers  de  la  Marine,  une  modification  est  ported  aux  articles  de 
contrebande  de  guerre.      Au   paragraphe   2  de   l'lnstruction  No.    1   du 


524  NEUTRALITY.  [PART  IV. 

Ministfcre  de  la  Marine  du  mois  de  Fevrier,  1904,  le  mot  "  houille  "  est 
remplace*  par  les  mots  "  houille  et  autres  combustibles." 

Par  suite  de  cette  modification  le  p6trole  sera  desormais  consider 
comme  contrebande  de  guerre  au  cas  du  paragraphe  de  l'lnstruction 
susmentionSe. 

Veuillez  agr6er,  Monsieur  le  Comte,  des  nouvelles  assurances  de  ma 

tr£s  haute  consideration. 

(Signe\) 
Son  Excellence  Monsieur  le  Comte  Vinci,  Envoys,  etc. 

On  the  6th  of  February,  1905,  the  German  Minister  also 
sent  a  letter  to  our  Foreign  Minister,  requesting  to  be  given  a 
certificate  by  our  Government  for  export  of  kerosene  oil. 

This  request  was  refused  by  the  Japanese  Government,  and 
the  Japanese  Foreign  Minister  replied  on  the  ground  that  a 
modification  was  put  on  the  articles  of  contraband  of  war  by 
the  Instruction  No.  1,  and  in  paragraph  2  of  the  Instruction 
No.  1  of  Minister  of  the  Navy  of  February,  1904,  the  word 
"  coal "  was  replaced  by  the  words  "  coal  and  other  combus- 
tibles," so  that  kerosene  oil  will  be  included  in  the  articles  of 
contraband  in  such  a  case. 


Sect.  VII.     About  Cotton. 

There  are  very  few  reports  available  for  a  chapter  on  cotton 
as  contraband,  owing  to  the  scarcity  of  cases. 

On  the  13th  of  May,  1904,  Keuter  announced  that  Russia 
had  declared  cotton  to  be  contraband,  because  it  is  used  in  the 
manufacture  of  explosives. 

It  was  stated  that  China  had  declared  that  she  would  not 
regard  raw  cotton  as  contraband  of  war.  The  Russians  having 
included  cotton  in  their  list  of  contraband  articles,  the  Japa- 
nese cotton  mills  were  almost  cut  off  from  the  supply  of  the 
raw  material.  Another  article  appeared  in  the  newspapers  of 
the  18th  of  August,  to  the  effect  that  the  Tokyo  Chamber  of 
Commerce  had  petitioned  the  Foreign  Office  and  the  Depart- 
ment of  Agriculture  and  Commerce  with  a  view  to  relieving  the 
cotton  spinners. 


CHAP.  IV.,  SECT.  VII.]      ABOUT   COTTON.  525 

Some  newspapers  of  the  27th  of  May,  1905,  announced  that 
the  finding  of  the  Russian  Admiralty  Court  treating  cotton  as 
contraband  was  likely  to  give  rise  to  serious  negotiations  with 
the  British  and  American  Governments.  It  appears  from  this 
that  it  was  not  only  Japan  who  was  cut  off  from  a  supply  of 
cotton,  who  was  distressed,  but  also  Great  Britain  and  the 
United  States  of  America  were  much  distressed  and  embar- 
rassed from  the  diminution  of  demands. 


PART  V. 

DECISIONS   OF  THE  JAPANESE 
PRIZE  COURTS. 


CHAPTER  I. 
GENERAL  STATEMENTS. 

During  the  Russo-Japanese  War  the  Japanese  warships  cap- 
tured many  Russian  and  neutral  vessels,  which  were  brought 
to  the  ports  of  adjudication  in  Japan.  Japan  established 
special  courts  for  prize  cases,  two  in  number,  one  at  Sasebo, 
near  Nagasaki,  and  the  other  at  Yokosuka,  near  Yokohama. 
Above  these  two,  a  Higher  Prize  Court  was  established  in 
Tokyo. 

Japan  adopted  the  German  system  in  organising  these 
courts,  while  she  adopted  English  principles  and  some  Amer- 
ican rules  in  making  Prize  Law,  as  will  be  seen  in  reading 
through  Japanese  Prize  Court  Law  and  Japanese  Prize  Regu- 
lations, etc.     (See  Appendix.) 

Sect.  I.  Japanese  Prize  Court  Regulations,  and  the  Or- 
ganisation of  the  Japanese  Prize  Courts. 

On  the  day  when  the  late  war  was  declared  by  Japan  the 
following  ordinance  was  issued : 

Imperial  Ordinance  establishing  Prize  Courts  and  a  Higher  Prize 
Court  (Ordinance  No.  XXVII.,  promulgated  on  the  10th  of  the  2nd 
month  of  the  37th  year  of  Meiji). 

Prize  Courts  and  a  Higher  Prize  Court  are  hereby  established. 

The  Prize  Courts  shall  sit  at  Sasebo  and  Yokosuka.  (The  words 
"  and  Yokosuka "  were  added  by  Imperial  Ordinance  No.  LVI.  of  the 
37th  year  of  Meiji.) 

This  ordinance  takes  effect  from  the  date  of  promulgation. 

527 


528  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

On  March  3rd  the  amendment  of  the  Prize  Court  Kegula- 
tions,  which  has  been  approved  by  the  Privy  Council,  was  pub- 
lished in  the  Official  Gazette. 

The  regulations  are  as  follows: 

PRIZE   COURT   REGULATIONS. 

Promulgated  by  Imperial  Ordinance  No.  149;  8th  month,  27th 
year  of  Meiji    (August,  1894). 

Amended  by  Imperial  Ordinance  No.  55;  3rd  month,  37th  year 
of  Meiji    (March,  1904). 

Amended  by  Imperial  Ordinance  No.  41 ;  2nd  month,  38th  year  of 
Meiji    (February,   1905). 

Chapter  I.     OrganisaMon  and  Power  of  Prize  Courts  and 
the  Higher  Prize  Court. 

Art.  I.  Cases  of  capture  shall  be  adjudicated  in  the  first  instance 
by  a  Prize  Court  and  in  the  second  instance  by  the  Higher  Prize 
Court. 

Art.  II.  There  shall  be  appointed  to  every  Prize  Court  a  Presi- 
dent and  eight  Councillors. 

The  President  of  a  Prize  Court  shall  be  appointed  from  judges 
of  "  Chokunin  "  rank. 

The  Councillors  of  a  Prize  Court  shall  be  appointed  from  the 
following : 

1.  Judges; 

2.  Navy  Flag  Officers; 

3.  Councillors   and   Enquirers   of   the   Navy  Department; 

4.  Councillors  of  the  Legislative  Bureau; 

5.  Councillors  of  the  Foreign  Department,  Secretaries  of  the  For- 
eign Department,  and  diplomatic  and  consular  officers. 

Art.  III.  There  shall  be  appointed  to  the  Higher  Prize  Court  a 
President  and  eight  Councillors. 

The  President  of  the  Higher  Prize  Court  shall  be  appointed  from 
Privy  Councillors. 

One  of  the  Councillors  of  the  Higher  Prize  Court  shall  be  a  Privy 
Councillor;  two  shall  be  navy  flag  officers;  three,  judges  of  the  Court 
of  Cassation;  one,  the  Director  of  the  Legislative  Bureau;  and  one, 
the  Director  of  the  Bureau  of  Political  Affairs  of  the  Department 
for  Foreign  Affairs. 

Art.  IV.  The  President  of  a  Prize  Court,  or  of  the  Higher  Prize 
Court,  shall  supervise  the  affairs  of  the  court  under  his  charge;  shall 


CHAP.  I.,  SECT.  I.]      PRIZE   COURT   REGULATIONS.  529 


preside  at  trials;  or  in  case  he  is  not  able  to  be  present,  may  nom- 
inate a  chairman  from  among  the  Councillors  of  the  Court. 

Art.  V.,  1.  There  shall  be  appointed  to  a  Prize  Court  three  Pub- 
lic Procurators,  and  two  to  the  Higher  Prize  Court. 

Public  Procurators  shall  be  appointed  from  among  Enquirers,  Pub- 
lic Procurators  of  law  courts,  and  higher  Civil  Officers. 

Art.  V.,  2.  There  shall  be  appointed  to  the  Higher  Prize  Court 
two  officers  of  "  Sonin "  rank,  who  shall  manage  the  general  affairs 
of  the  Court,  and  whose  official  classes  and  salaries  shall  be  like  those 
of  departmental  secretaries. 

Art.  VI.  The  President,  Councillors,  and  Public  Procurators  of 
the  Higher  and  other  Prize  Courts  shall  be  appointed  on  the  recom- 
mendation of  the  Prime  Minister. 

Art.  VII.  There  shall  be  attached  to  each  Prize  Court  and  to 
the  Higher  Prize  Court  a  force  of  clerks. 

Clerks  shall  be  appointed  by  the  President  from  among  officials 
of  "  Hannin  "  rank  and  others. 

Art.  VIII.  At  trials  before  a  Prize  Court  there  must  be  present 
in  consultation  the  Presiding  Judge  and  at  least  four  Councillors,  two 
of  whom  shall   be  those  appointed  from  judges  of  law  courts. 

At  trials  before  the  Higher  Prize  Court  there  must  be  present  in 
consultation  the  Presiding  Judge  and  at  least  six  Councillors. 

Art.  IX.  The  opening  and  closing  of  the  Higher  and  other  Prize 
Courts  shall  be  decreed  by  Imperial  Ordinance. 

The  Higher  Prize  Court  shall  sit  at  Tokyo.  The  location  of  other 
Prize  Courts  shall  be  decreed  by  Imperial  Ordinance. 

Chapter  II.     Procedure  of  Trial  of  Cases  of  Capture. 

Art.  X.  The  commanding  officer  of  a  vessel  which  has  seized  a 
prize,  shall  take  it  to  a  port  where  there  is  a  Prize  Court,  or  shall 
order  his  representative  to  do  so.  On  arrival  at  the  port,  the  officer 
shall  deliver  the  prize  to  the  Prize  Court  together  with  the  statement 
of  capture.  In  case  it  is  impossible  to  bring  the  prize  to  port,  how- 
ever, he  may  deposit  only  the  statement  of  capture. 

The  statement  of  capture  shall  contain  the  reason  the  capture  was 
made  and  all  facts  showing  the  propriety  of  the  act,  and  shall  be 
accompanied  by  all  the  books  and  papers  received  from  the  master  or 
other  members  of  the  crew  of  the  captured  vessel,  or  found  within  it. 

Art.  XI.  On  receiving  the  statement  prescribed  in  Art.  X.,  the 
President  of  the  Prize  Court  shall  nominate  a  Councillor  to  take 
charge  of  the  case. 

The    Councillor    so    nominated    shall    immediately    open    the    docu- 


530  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

ments  in  the  presence  of  the  commanding  officer  or  his  representative 
and  the  master  of  the  captured  vessel,  and  shall  prepare  an  inven- 
tory of  them. 

After  the  preparation  of  the  inventory,  the  Councillor  shall  in- 
spect the  captured  vessel  and  cargo,  and  shall  prepare  a  minute  in- 
ventory of  the  goods  in  the  presence  of  the  master. 

In  case  the  captured  vessel  has  not  been  brought  into  port,  the 
previous  clause  may  not  be  conformed  to. 

Art.  XII.,  1.  The  Councillor  in  charge  of  the  particular  case  shall 
hear  the  statements  of  the  master  and  crew  of  the  captured  vessel, 
and,  if  he  thinks  it  necessary,  also  those  of  the  crew  of  the  cap- 
turing vessel  and  of  the  passengers  of  the  captured  vessel,  and  shall 
order  the  clerk  to  record  them. 

Art.  XII.,  2.  The  Councillor  in  charge  of  the  particular  case 
may,  if  he  thinks  it  necessary,  order  experts  to  give  their  opinions 
on  certain  points  which  he  shall  designate. 

Art.  XIII.  The  Councillor  in  charge  of  the  particular  case,  when 
he  has  ascertained  the  facts  which  he  thinks  necessary  to  decide 
whether  the  whole  or  part  of  the  prize  should  be  condemned  or  re- 
leased, shall  prepare  a  report,  which  he  shall  deliver  to  the  Public 
Procurators  together  with  the  statement  of  capture  and  documents 
annexed  to  it. 

Art.  XIV.  The  Public  Procurators  shall  frame  their  opinions  con- 
cerning the  adjudication  of  the  case,  and  shall  submit  them  to  the 
Prize  Court  together  with  all  the  documents  which  they  have  re- 
ceived. 

The  Public  Procurators,  when  they  think  it  necessary,  may  re- 
quest the  Councillor  in  charge  of  the  particular  case  to  investigate 
certain   facts   which  they  shall   designate. 

Art.  XV.  In  case  the  opinion  of  the  Public  Procurators  favours 
the  immediate  release  of  the  prize,  and  the  Court  considers  it  reason- 
able, the  Court  shall  prepare  a  decision  of  immediate  release  and 
deliver   it   to   the    Public    Procurators. 

Art.  XVI.  In  case  the  opinion  of  the  Public  Procurators  favours 
the  condemnation  of  the  prize,  or  in  case  the  Prize  Court  disapproves 
an  opinion  of  the  Public  Procurators  in  favour  of  immediate  release, 
the  Court  shall  publish  an  advertisement  in  the  Official  Gazette  and 
two  foreign  newspapers  published  in  the  Empire,  stating  that  the 
interested  parties  may  submit  petitions  in  writing  within  thirty  days, 
reckoning  from  the  next  day  after  the  publication  of  the  advertisement. 

In  case  no  petition  is  filed  within  the  period,  the  Prize  Court 
shall  immediately  proceed  to  trial.  If,  however,  the  Public  Procura- 
tors so  request,  the  Court  shall  dispense  with  the  proceeding  of  trial 


CHAP.  I.,  SECT.  I.]      PRIZE   COURT   REGULATIONS.  531 

and  give  their  decision  immediately,  and  deliver  it  to  the  Public 
Procurators. 

Art.  XVII.,  1.  In  a  petition  the  grounds  for  making  it  shall  be 
stated,  and  it  shall  be  accompanied  by  documents  and  articles  in 
evidence. 

A  petitioner  may  appoint  a  counsellor  at  law  of  the  Empire,  but 
no  other,  as  his  advocate. 

Art.  XVII.,  2.  When  a  petitioner  or  his  advocate  has  no  resi- 
dence at  the  place  where  the  Prize  Court  is  situated,  he  shall  select 
a  temporary  residence  there  to  receive  delivery  of  documents,  and 
shall  notify  the  Court  of  it. 

In  case  such  notification  is  not  made,  all  documents  shall  be  de- 
spatched by  mail,  and  in  this  case  all  the  periods  prescribed  in  these 
Regulations  shall  be  reckoned  from  the  day  on  which  the  documents 
were  posted. 

Art.  XVIII.  When  a  petition  is  filed  within  the  period  allowed, 
oral  trial  shall  be  held  on  a  designated  day  and  hour,  and  the  state- 
ments of  the  Public  Procurators  and  of  the  petitioner  shall  be  heard. 

In  case  the  petitioner  is  absent  without  permission  on  the  day 
designated  for  oral  trial,  the  trial  may  be  opened  without  him. 

When  the  oral  trial  is  finished,  a  decision  shall  be  drawn  up,  and 
shall  be  announced  immediately  or  on  a  designated  day.  The  pres- 
ence of  the  petitioner  is  not,  however,  necessary  on  that  day. 

Art.  XIX.  WThen  the  Prize  Court  considers  it  necessary  to  take 
further  evidence  before  giving  decision,  it  may  order  the  Councillor 
in  charge  of  the  case  to  make  investigation. 

The  Public  Procurators  and  petitioner  may  produce  any  new  facts 
or  evidence  in  the  period  before  a  decision  is  given. 

In  the  above  cases,  the  Prize  Court  may  hold  an  oral  trial  again, 
if   it  considers  it  necessary. 

Art.  XX.  In  addition  to  the  provisions  of  the  above  articles,  the 
Prize    Court  shall   make  rules  governing  the  procedure   of   trial. 

Art.  XXI.  The  Public  Procurators  or  the  petitioners  may  file 
protests  before  the  Higher  Prize  Court  against  the  decisions  of  Prize 
Courts. 

Art.  XXII.  The  period  allowed  for  protest  is  twenty  days,  reck- 
oning from  the  next  day  after  the  announcement  or  despatch  of  the 
decision. 

Art.  XXIII.,  1.  Protests  shall  be  made  by  filing  with  the  Prize 
Court  a  document  containing  the  principal  points  of  the  protest  and 
reasons  for  them. 

The  protest  of  a  petitioner  must  be  signed  by  a  counsellor  at  law 
of    the   Empire. 


532  NEW  CASES   ON   PRIZE   LAW.  [PART  V. 

Art.  XXIII.,  2.  The  Prize  Court  shall  reject  a  protest  that  does 
not  conform  to  the  form  prescribed,  or  one  filed  after  the  lapse  of  the 
period   allowed. 

In  the  case  of  a  protest  not  conforming  to  the  form,  the  Prize 
Court  may  order  correction  if  such  irregularity  consist  of  unimpor- 
tant matter,  such  as  date,  address,  etc. 

Art.  XXIV.,  1.  Except  in  case  of  rejection  according  to  the  preced- 
ing article,  the  Prize  Court  shall  send  a  copy  of  the  petitioner's 
protest  to  the  Public  Procurators  or  of  the  Public  Procurator's  to 
the  petitioner,  and  shall  order  an  answer  to  be  filed  within  a  period 
of  ten  days. 

The  protest  of  a  petitioner  mentioned  in  the  preceding  clause  must 
be  signed  by  a  counsellor  at  law  of  the  Empire. 

Art.  XXIV.,  2.  A  Prize  Court  may,  if  it  thinks  it  necessary,  ex- 
tend the  periods  mentioned  in  Arts.  XVI.,  XXII.,  and  XXIV. 

Art.  XXV.  When  the  period  allowed  for  filing  an  answer  has 
elapsed,  the  Prize  Court  shall  forward  to  the  Higher  Prize  Court  all 
the  documents  concerning  the  protest. 

When  the  Higher  Prize  Court  thinks  that  further  examination  of 
facts  or  taking  of  evidence  is  necessary,  it  shall  return  the  docu- 
ments mentioned  in  the  preceding  clause  to  the  Prize  Court,  and  order 
it  to  make  the  examination. 

The  Prize  Court  shall  order  the  Councillor  who  has  charge  of  the 
case  to  make  the  examination  mentioned  in  the  preceding  clause, 
and  before  forwarding  the  documents  to  the  Higher  Prize  Court,  shall 
show  them  to  the  Public  Procurator  and  the  petitioner. 

Art.  XXVI.,  1.  The  Higher  Prize  Court  shall  give  its  decision  ac- 
cording to  the  documents,  and  shall  send  a  copy  of  the  decision  to 
the  Public  Procurator  of  the  original  Prize  Court  and  to  the  petitioner. 

Art.  XXVI.,  2.  When  decisions  of  Prize  Courts  or  of  the  Higher 
Prize  Court  take  effect,  the  gist  of  them  shall  be  published  in  the 
Official  Gazette. 

Art.  XXVI.,  3.  In  Prize  Courts  and  the  Higher  Prize  Court  the 
Japanese  language  shall  be  used. 

In  the  examination  of  any  persons  who  are  not  acquainted  with 
the  Japanese  language,  interpreters  may  be  employed. 

Art.  XXVII.  The  Higher  Prize  Court  shall  make  rules  govern- 
ing the  procedure  of  trials  before  it. 

Art.  XXVIII.  Condemned  prizes  shall  be  the  property  of  the 
State. 

Art.  XXIX.  Prize  Courts  shall  entrust  vessels  and  goods  cap- 
tured to  the  charge  of  the  Naval  Authorities  until  the  time  of  execu- 
tion of  the  decisions. 


CHAP.  I.,  SECT.  I.]      PRIZE   COURT   REGULATIONS.  533 

The  Naval  Authorities  shall  take  charge  of  vessels  and  goods  men- 
tioned in  the  preceding  clause  under  rules  prescribed  by  the  Minister 
of  the  Navy  Department. 

Abt.  XXX.  The  decisions  shall  be  executed  by  the  Public  Proc- 
urators of  Prize  Courts. 

In  the  execution  of  decisions  the  Public  Procurators  may  request 
the   assistance  of  the  Naval  Authorities  and  employ   police   force. 

Art.  XXXI.  The  provisions  of  this  chapter  shall  apply  also,  as 
far  as  possible,  to  cases  of  vessels  which  under  special  circumstances 
have  not  been  brought  into  port. 

Supplementary  Provision. 
Art.  XXXII.     These   Regulations   shall   take   effect   from   the   date 
of  promulgation. 

As  the  result  of  the  amendment  of  the  Prize  Court  Regu- 
lations, the  following  appointments  are  published: 

I.     The  Sasebo  Prize  Court. 
President. 
Matsumuro  Itasu,  Judge. 

Appointed,  10th,  2nd  month,  37th  year. 

Councillors. 
Yonemura  Sosen,  Judge. 

Appointed,  10th,  2nd  month,  37th  year. 

Released,  9th,  4th  month,  37th  year. 
Yamaguchi  Takehiro,  Judge. 

Appointed,   10th,  2nd  month,  37th  year. 
Atachi  Mineichiro,  Councillor  of  the  Department  of  Foreign  Affairs. 

Appointed,  10th,  2nd  month,  37th  year. 

Released,  2nd,  3rd  month,  37th  year. 
Ota  Sanjiro,  Commander. 

Appointed,   10th,  2nd  month,  37th  year. 

Released,  22nd,   1st  month,  39th  year. 
Kamiyama   Mannoshin,    Councillor  of   the    Legislative    Bureau. 

Appointed,  10th,  2nd  month,  37th  year. 
Sagara  Tsunao,  Enquirer. 

Appointed,  10th,  2nd  month,  37th  year. 

Released,  16th,  6th  month,  38th  year. 
Baron  Nishi  Shinrokuro,  Captain. 

Appointed,  2nd,   3rd  month,  37th  year. 

Released,   8th,   3rd  month,  37th  year. 


534  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Yendo  Genroku,   Councillor  of  the  Navy  Department. 

Appointed,  2nd,  3rd  month,  37th  year. 
Matsuda  Doichi. 

Appointed,  9th,  3rd  month,  37th  year. 
Okata   Keisuke,   Lieutenant   Commander. 

Appointed,   9th,    3rd   month,  37th  year. 

Released,  12th,  4th  month,  37th  year. 
Koyama  Matsukichi,  Judge. 

Appointed,   9th,  4th  month,  37th  year. 
Sakai  Tadatoshi,  Captain. 

Appointed,    12th,  4th  month,   37th  year. 

Released,   10th,  2nd  month,  38th  year. 
Miyachi   Sadatoki,    Captain. 

Appointed,    15th,   2nd  month,   38th  year. 

Released,   14th,  6th  month,  38th  year. 
Ide  Rinroku,  Captain. 

Appointed,    14th,   6th  month,   38th  year. 

Released,  9th,  8th  month,  38th  year. 
Sasaki  Hirokatsu,   Captain. 

Appointed,  9th,  8th  month,  38th  year. 

Released,   12th,   12th  month,  38th  year. 

Public  Procurators. 

Minakami  Chojiro,  Public  Procurator. 

Appointed,    10th,   2nd  month,   37th  year. 
Yamamoto  Shinrokuro,  Public  Procurator. 

Appointed,   10th,  2nd  month,  37th  year. 
Hayashi  Yeijuro,  Enquirer. 

Appointed,  2nd,   3rd  month,  37th  year. 

II.     The  Yokosuka  Prize  Court. 

President. 

Hasegawa  Takashi,  Judge. 

Appointed,   2nd,   3rd  month,  37th  year. 

Councillors. 
Watanabe  Toru,  Judge. 

Appointed,  2nd,  3rd  month,  37th  year. 
Atachi  Mineichiro,  Councillor  of  the  Department  of  Foreign  Affairs. 

Appointed,   2nd,   3rd   month,    37th   year. 
Suzuki  Kisaburo,  Judge. 

Appointed,  2nd,  3rd  month,  37th  year. 


CHAP.  I.,  SECT.  I.]   PRIZE  COURT  REGULATIONS.  535 

Shimooka  Chuji,  Councillor  of  the  Legislative  Bureau. 

Appointed,   2nd,  3rd  month,   37th  year. 
Kurachi  Tetsukichi,  Councillor  of  the  Department  of  Foreign  Affairs. 

Appointed,   2nd,   3rd  month,   37th  year. 
Sakakiwara   Chuzaburo,   Lieutenant   Commander. 

Appointed,  2nd,  3rd  month,  37th  year. 

Released,   10th,  8th  month,  38th  year. 
Tokuta   Michizo,    Lieutenant   Commander. 

Appointed,  2nd,   3rd  month,  37th  year. 

Released,   5th,   3rd   month,   39th   year. 
Yamakawa  Tampu,  Councillor  of  the  Navy  Department. 

Appointed,  2nd,  3rd  month,  37th  year. 
Kataoka  Yeitaro,  Commander. 

Appointed,  10th,  8th  month,  38th  year. 

Public  Procurators. 
Kobayashi  Yoshiro,  Public  Procurator. 

Appointed,  2nd,  3rd  month,  37th  year. 
Uchida  Shigenari,  Enquirer. 

Appointed,  2nd,  3rd  month,  37th  year. 
Yanagita  Kunio,  Councillor  of  the  Legislative  Bureau. 

Appointed,  2nd,   3rd  month,   37th   year. 

III.     The  Higher  Prize  Court. 

President. 
Viscount  Tanaka  Fujumaro,  Privy   Councillor. 
Appointed,  10th,  2nd  month,  37th  year. 

Councillors. 
Baron    Nishi    Tokujiro,    Privy    Councillor. 

Appointed,  10th,  2nd  month,  37th  year. 
Terashima  Naoshi,  Judge. 

Appointed,    10th,   2nd   month,   37th  year. 
Arima   Shinichi,   Vice  Admiral. 

Appointed,  10th,  2nd  month,  37th  year. 

Released,   11th,  1st  month,  38th  year. 
Ichiki    Kitokuro,    Hogaku    Hakushi     (LL.D.),    Director    of    the    Legis- 
lative Bureau. 

Appointed,   10th,  2nd  month,  37th  year. 

Released,   13th,  1st  month,  39th  year. 
Inoue   Shoichi,  Judge. 

Appointed,    10th,  2nd  month,   37th  year. 


536  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Tomitani  Seitaro,  Judge. 

Appointed,  10th,  2nd  month,  37th  year. 
Hashimoto  Masaakira,  Rear  Admiral. 

Appointed,   10th,  2nd  month,  37th  year. 

Released,  20th,  12th  month,  38th  year. 
Yamaza    Yenjiro,  Directer    of   the   Bureau    of    Political    Affairs    of   the 
Department  of  Foreign  Affairs. 

Appointed,   10th,  2nd  month,  37th  year. 
Kimotsuki  Kaneyuki,  Vice  Admiral. 

Appointed,    11th,   1st  month,  38th  year. 

Released,   4th,    11th   month,   38th  year. 
Doke  Hitoshi,  Councillor  of  the  Legislative  Bureau. 

Appointed,    9th,    8th   month,    38th   year. 
Matsui   Keishiro,   Councillor  of  the  Department   of  Foreign  Affairs. 

Appointed,  9th,  8th  month,  38th  year. 
Matsumoto  Wa,  Rear  Admiral. 

Appointed,   4th,    11th  month,   39th  year. 
Kato  Tomosaburo,   Rear  Admiral. 

Appointed,   20th,   12th  month,   38th  year. 

Released,  25th,  1st  month,  39th  year. 
Okano  Keijiro,  Hogaku  Hakushi,  Director  of  the  Legislative  Bureau. 

Appointed,  20th,  1st  month,  39th  year. 
Sakamoto  Toshiatsu,   Vice  Admiral. 

Appointed,   25th,    1st  month,  39th  year. 

Public  Procurators. 
Tsuzuki  Keiroku,  Chief  Secretary  of  the  Privy  Council. 

Appointed,  10th,  2nd  month,  37th  year. 
Ishiwatari    Binichi,    Vice   Minister    of   Justice. 

Appointed,  10th,  2nd  month,  37th  year. 

These  Courts  continued  the  trials  after  conclusion  of  the 
Treaty  of  Peace,  by  the  following  resolution: 

RESOLUTION  OF  THE  CABINET  CONCERNING  CONTINUATION 
OF  TRIAL  OF  CASES  OF  CAPTURE  AFTER  THE  RESTORA- 
TION OF  PEACE. 

The  following  notification  was  received  from  the  Cabinet  on  the 
19th  day  of  the  9th  month  of  the  38th  year  of  Meiji: 

The  enclosed  propositions,  submitted  by  the  Ministers  of  War  and 
the   Navy,    concerning    the   continuation   of   trial    of    cases   of   capture 


CHAP.  I.,  SECT.  II.]        CAPTURED   VESSELS. 


537 


after    the    restoration    of    peace,    have    been    adopted    by    the    Cabinet 
Council. 

(Enclosure.)      Propositions  of  the  Ministers  of  War  and  the  Navy. 

1.  All  the  cases  of  capture  pending  in  Prize  Courts  at  the  time 
of  the  restoration  of  peace  shall  be  allowed  to  be  tried,  no  matter  in 
what  stages  they  are.  In  other  words,  the  Higher  and  other  Prize 
Courts  shall  continue  sitting,  even  after  the  restoration  of  peace,  just 
as  they  have  been  doing,  until  they  shall  have  finished  all  the  cases 
pending. 

2.  Vessels  which  have  been  captured  but  which  have  not  been 
brought  to  a  port  of  adjudication,  being  on  the  way  at  the  time  of  the 
restoration  of  peace,  shall  be  referred  to  Prize  Courts  and  be  adjudged. 

The  Higher  Prize  Court  and  the  Prize  Courts  at  Yokosuka 
and  Sasebo  were  closed  on  the  31st  of  March,  1906,  by  Im- 
perial Ordinance  No.  XXXIV. 

Sect.  II.     Vessels  Captured  by  the  Japanese  Navy. 

To  throw  light  on  all  the  prize  cases  brought  before  the 
Japanese  Prize  Courts  they  are  presented  in  tabulated  form. 


VESSELS    CAPTURED,    ARRANGED    ACCORDING    TO 
NATIONALITY. 

The  total  tonnage  of  the  vessels  condemned  is : 
Registered  tonnage,  about  81,565  tons. 
Gross  tonnage,  about  124,489  tons. 


Nationality. 


Russia 

Great  Britain 

Germany 

America 

Norway 

Austria-Hungary 

France 

Holland 

Sweden 

China 

Total 


Total. 

Steam- 

Sailing 

Con- 

Re- 

ers. 

Vessels. 

demned. 

leased. 

16 

13 

3 

16 

0 

22 

21 

1 

17 

5 

10 

10 

0 

7 

0 

5 

5 

0 

3 

0 

4 

4 

0 

1 

2 

2 

2 

0 

2 

0 

2 

2 

0 

2 

0 

1 

1 

0 

1 

0 

1 

1 

0 

1 

0 

1 

1 

0 

0 

1 

64 

60 

4 

50 

8 

Released 

by 
Special 
Favour. 


538 


NEW   CASES   ON   PRIZE   LAW. 


[PART.  V. 


H.    VESSELS   CONDEMNED    AND    REASONS   FOR 
CONDEMNATION. 


Sasebo 

Yokosuka 

Prize 

Prize 

Court. 

Court. 

11 

6 

9 

16 

1 

0 

4 

0 

2 

0 

1 

0 

28 

22 

Total. 


Enemy  vessel 

Transportation  of  contraband  goods 
Transportation  of  contraband  persons . . 

Violation  of  blockade 

Attempt  to  obtain  military  information 
Assisting  the  enemy's  hostile  operations 

Total 


17 
25 
1 
4 
2 
1 


50 


III.    VESSELS    ADJUDICATED    AT    VARIOUS    PRIZE    COURTS 
AND    THE    HIGHER    PRIZE    COURT. 


Total  number  of  vessels  captured 

Vessels  for  which  petitions  were  filed 

Vessels  for  which  petitions  were  not  filed 

Vessels  that  appealed  from  the  decisions  of 
Prize  Courts  (number  dealt  with  by  the 
Higher  Prize  Court) 

Vessels  condemned 

Vessels  released 

Vessels  released  by  special  favour 


Sasebo 

Yokosuka 

Prize 

Prize 

Court. 

Court. 

39 

25 

29 

19 

6 

4 

28 

19 

28 

22 

7 

1 

4 

2 

471 

50 
8 
6 


1  The  number  dealt  with  by  the  Higher  Prize  Court  includes  three  vessels  that 
appealed  from  the  decision  with  regard  to  cargo  only. 


IV.  NUMBER  OF  CASES  TRIED  BEFORE  THE  PRIZE 

COURTS. 


Sasebo 
Prize 
Court. 

Yokosuka 
Prize 
Court. 

Total. 

Cases  tried . .          

90 

77 
13 

34 

29 

5 

124 

Cases  in  which  petitions  were  filed 

106 

Cases  for  which  petitions  were  not  filed 

18 

CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  539 

V.     NUMBER     OF     CASES     TRIED     BEFORE    THE     HIGHER 
PRIZE    COURT. 


By  Peti- 
tioner. 

By  Public 
Procu- 
rator. 

Grand 
Total. 

Appeals  from  the  Sasebo  Prize  Court . 

Appeals  from  the  Yokosuka  Prize  Court 

65 
26 

0 

1 

65 

27 

Grand  total 

92 

Besides  the  above  there  was  one  case  dismissed  by  the  Higher  Prize 
Court  and  one  by  the  Sasebo  Prize  Court. 

Sect.  III.     Japanese  Principles  Concerning  Prize  Cases. 

Readers  will  be  convinced  that  Japan  was  law-abiding  in 
dealing  with  prize  cases,  when  they  review  the  details  of  de- 
cisions mentioned  in  the  following  chapters. 

Here  the  author  enumerates  some  of  the  important  prin- 
ciples laid  down  by  the  Japanese  Prize  Courts,  quoting  decisions 
in  each  Section  as  illustrative  of  those  principles. 


I.     Petition  by  a  Party  Not  Interested. 

Case  I.    The  Manchuria. 
Decision    published    in   the   Official    Gazette, 

Tokyo,  of  June  24,  1904. 

Decision  of  the  Sasebo  Prize  Court. 
The   following   decision   has   been  given  by  the   Sasebo   Prize    Court 
on   the   cargo  of   the   Russian   steamship    Manchuria,   on   the   26th    of 
the  5th  month  of  the  37th  year  of  Meiji.1 

Petition  No.  III. 

Decision. 

Petitioner — Frederick  Ringer, 
Consul    of    Denmark    at    Nagasaki, 
7,  Oura,  Nagasaki. 
In  the  case  of  the  capture  of  the  cargo  of  the  Russian  steamship 
Manchuria,  the  following  decision  has  been  given: 

1  In  the  texts  of  decisions,  the  dates  are  translated  literally.     The  37th  year  of 
Meiji  corresponds  to  1904  a.d.     The  first  month  is  January,  etc. 


540  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Text  of  the  Decision. 
The  petition  under  consideration  is  hereby  rejected. 

Facts  and  Grounds  of  the  Decision. 

The  goods  under  consideration,  consisting  of  3  boxes  of  bedding, 
books,  and  miscellaneous  articles,  were  sent  by  a  Christian  church, 
Copenhagen,  Denmark,  to  a  Danish  Christian  church  at  Port  Arthur 
in  the  steamship  Manchuria,  belonging  to  the  East  Asia  Steamship 
Company,  Russia,  and  were  captured  by  the  Imperial  man-of-war 
Tatsuta,  together  with  the  steamship,  off  Port  Arthur,  on  the  9th 
of  the  2nd  month  of  the  37th  year  of  Meiji. 

The  above  facts  are  clear  from  the  petition;  the  statement  of 
Lieutenant  S.  Kihara,  representing  the  captain  of  the  capturing  man- 
of-war;  the  testimony  given  by  K.  Prahl  and  O.  Tampio,  master  and 
first  mate  of  the  steamship  Manchuria ;  and  the  freight  list  and  log- 
book of  the  ship. 

The  petitioner  makes  the  petition  as  Consul  of  H.  M.  the  King 
of  Denmark,  and  protests  that  the  goods  concerned  in  this  case  ought 
not  to  be  captured,  as  they  are  consigned  to  a  Danish  subject  and 
as  they  are  not  contraband  of  war  nor  property  of  a  subject  of  a 
belligerent  state.  The  petitioner  did  not  appear  in  court  on  the  day 
of  oral  trial,  although  he  was  notified  of  the  date. 

The  gist  of  the  argument  of  the  Public  Procurator  is  that  the 
petitioner  cannot  properly  be  considered  to  be  the  "  interested  person," 
as  mentioned  in  the  Prize  Court  Regulations,1  on  account  of  his  being 
a  consul,  and  therefore  the  petition  under  consideration  is  not  law- 
ful; but  that  as  the  goods  are  books  and  daily  necessaries  for  use 
of  a  Danish  Christian  church,  and  as  they  are  not  contraband  of 
war  and  may  be  deemed  requisite  for  religious  purposes,  it  is  proper, 
from  the  principle  of  protection  of  religion,  to  release  them. 

After  giving  due  consideration,  the  Court  concludes  that  the  neces- 
sary qualification  for  one  who  makes  a  petition  is,  according  to  the 
2nd  clause  of  Art.  XVI.  of  the  Prize  Court  Regulations,  that  he  must 
be  an  interested  person.  The  petitioner  has  not  proved  that  he  has 
any  interest  in  the  goods  involved,  and  he  has  filed  a  petition  for 
his  countryman  only  on  account  of  his  being  a  consul.  Nor  can  he 
be  considered  as  an  agent,  as  he  has  not  proved  that  he  has  a  power 
of  attorney  from  an  interested  person,  and  furthermore,  he  is  disquali- 
fied as  an  agent  by  the  2nd  clause  of  Art.  XVII.  of  the  Prize  Court 
Regulations. 

Therefore  the  petition  under  consideration  is  not  lawful.  And  if 
a  petition  is  unlawful,   it  is  to  be  rejected  and  there  is  no  need  to 

1  See  Appendix. 


CHAP.  I.,  SECT.  III.]  JAPANESE  PRINCIPLES  ON  PRIZE  CASES.    541 

discuss    the    petitioner's    plea.       Therefore    the    decision    is    given    as 
mentioned   in  the  text. 

Given  at  the  Sasebo  Prize  Court  this  26th  day  of  the  5th  month  of 
the  37th  year  of  Meiji,  in  the  presence  of  the  Public  Procurator  of 
the  Court,  T.   Yamamoto. 

Matsumuro, 

President  of  the  Sasebo  Prize  Court. 
Yamaguchi, 

Councillor  of  the  Sasebo  Prize  Court. 
Ota, 

Councillor  of  the  Sasebo  Prize  Court. 
Kamiyama, 

Councillor  of  the  Sasebo  Prize  Court. 
Yendo, 

Councillor  of  the  Sasebo  Prize  Court. 
Yoshida, 

Clerk  of  the  Sasebo  Prize  Court. 

Case  II.    The  Mukden. 

Decision  published  in  the  Official  Gazette, 

Tokyo,   of   June  23,    1904. 

Decision  of  the  Sasebo  Prize   Court. 
The   following  decision   has  been  given  by   the   Sasebo   Prize   Court 
on   the   cargo   of   the  Russian  steamship    Mukden,   on   the  26th   of  the 
5th  month  of  the  37th  year  of  Meiji. 

Petition  No.  XII. 

Decision. 

Petitioner — J.  Goudareau, 
Acting    Vice    Consul    of    France    at 
Nagasaki. 

In  the  case  of  the  capture  of  the  cargo  of  the  steamship  Mukden, 
the  decision  given  is  as  follows: 

Text  of  the  Decision. 
This  petition  is  hereby  rejected. 

Facts  and  Grounds  of  the  Decision. 

The  goods  under  consideration,  consisting  of  a  box  of  incense  and 

ten  other  kinds  of  articles,  were  transshipped  at   Shanghai  from   the 

French    steamships    Ernest    Simon    and    Gamboge,    to    the    steamship 

Mukden,  of  the  East  China  Railroad  Company  of  Russia,  to  be  trans- 


542  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

ported  to  Vladivostock,  Russia,  and  were  captured  by  the  Imperial 
man-of-war  Heiyen,  at  Fusan,  on  the  6th  of  the  2nd  month  of  the 
37th  year  of  Meiji,  together  with  the  steamship  Mukden. 

The  above  facts  are  clear  from  the  statement  of  Lieutenant  X. 
Yoshimura,  representing  the  captain  of  the  man-of-war  Heiyen,  the 
statements  of  Serge  Wisniofske  ( ?)*  and  Alexander  Iwanovitch  Ka- 
naek  (  ? ) ,  first  and  second  mates  of  the  steamship  Mukden,  the  freight 
list,   the   bill   of   lading,   the   log,   etc. 

The  gist  of  the  statement  of  the  petitioner  is,  that  the  consignors 
of  the  goods  under  consideration  are  the  Messageries  Maritime  Co. 
and  the  East  Asia  Co.,  both  of  France.  As  he  holds  an  office  to 
protect  the  interests  of  French  citizens,  and  moreover  the  consignee 
not  being  able  to  make  a  petition  on  account  of  the  difficulty  of 
communication  since  the  outbreak  of  the  Russo-Japanese  War,  he  has 
filed  the  petition  in  the  capacity  of  an  Acting  Vice  Consul,  and  that 
he  requests  the  release  of  the  goods,  as  they  are  not  contraband  of 
war. 

The  purport  of  the  argument  of  the  Public  Procurator  is,  that  a 
consular  officer  has  the  duty  of  protecting  the  interests-  of  the  citi- 
zens of  his  country,  but  he  cannot  be  construed  on  that  account  to 
be  the  "  interested  person "  as  mentioned  in  the  Prize  Court  Regula- 
tions, and  consequently  the  petition  is  not  lawful ;  that  the  goods, 
which  are  the  object  of  petition,  are  enemy  goods,  and,  therefore, 
they  are  confiscable;  but  that  one  bundle  of  French  national  flags, 
belonging  to  the  French  Commercial  Agent  at  Vladivostock,  should  be 
released. 

After  due  consideration,  the  Court  concludes  that  a  consul's  duty 
is  to  protect  the  interests  of  his  countrymen  residing  in  the  state 
to  which  he  is  accredited,  as  is  argued  by  the  petitioner,  but  it  is 
impossible  to  construe  him  on  that  account  to  be  the  "  interested 
person "  as  mentioned  in  Art.  XVI.  of  the  Prize  Court  Regulations. 
Moreover,  both  the  consignors  and  consignee  are  not  residing  in  the 
country  to  which  the  petitioner  is  accredited,  and  consequently  this 
petition  cannot  be  said  to  be  lawful.  And  if  a  petition  is  unlawful, 
it  is  to  be  rejected  without  examining  other  statements  of  the  peti- 
tioner.    Therefore,  the  decision  has  been  given  as  stated  in  the  text. 

Given  this  26th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Sasebo  Prize  Court  in  the  presence  of  C.  Minakami,  the  Public 
Procurator  of  the  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court.2 

1  Spelling  probably  in  error. 

2  Names  are  omitted,  as  readers  can  find  them  in  Book  II.  Part  I.  Chapter  I. 


CHAP.  I.,  SECT.  III.]  JAPANESE  PRINCIPLES  ON  PRIZE  CASES.    543 

II.  Petition  by  an  Attorney  Other  Than  a  Japanese  Counsel- 
lor at  Law. 

Case  I.     The  Mukden. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  June  23,  1904. 

Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  has   been  given   by  the   Sasebo  Prize   Court 
on  the  cargo  of  the  Russian  steamer  Mukden,  on  the  26th  of  the  5th 
month  of  the  37th  year  of  Meiji: 
Petition  No.  XIII. 

Decision. 
Petitioner — The  East  Asiatic  Company,  Shanghai,  China. 
Representative — A.  Petersen    (  ? ) .' 
Representative — Ivan  Andersen  ( ? ) . 

Advocate — Frederick  Ringer,  British  subject,  7,  Oura-machi, 
Nagasaki. 

In  the  case  of  the  capture  of  the  cargo  of  the  steamship  Mukden, 
the   decision  given    is    as   follows: 

Text  of  the  Decision. 

The  petition  is  hereby  rejected. 

Facts  and  the  Grounds  of  the  Decision. 

The  goods  under  consideration,  consisting  of  paper  for  account-books 
and  five  other  kinds  of  articles,  were  destined  for  Vladivostock,  being 
laden  in  the  steamship  Mukden,  of  the  East  China  Railroad  Company, 
Russia,  and  were  captured  by  the  Imperial  man-of-war  Heiyen  at  the 
port  of  Fusan,  Korea,  together  with  the  ship,  on  the  6th  of  the  2nd 
month  of  the  37th  year  of  Meiji. 

The  above  facts  are  clear  from  the  statement  of  Lieutenant  N. 
Yoshimura,  representing  the  Captain  of  the  man-of-war  Heiyen,  the 
statements  of  Serge  Wisniofske  and  Alexander  Iwanovitch  Kanaek,  first 
and  second  mates  of  the  steamship  Mukden,  the  freight  list,  the  bill  of 
lading,  the  log,  etc. 

The  gist  of  the  argument  of  the  advocate  is  that  the  goods  being 
laden  before  the  outbreak  of  the  war  between  Japan  and  Russia  and 
being  the  property  of  a  merchant  company  of  a  neutral  state,  ought  to 
be  released.  The  advocate  of  the  petitioner  did  not  appear  on  the  day 
of  oral  trial,  though  he  was  notified  of  the  date. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that  there   is 

1  In  translating  proper  names,  if  there  is  any  doubt  as  to  the  spelling,  interrogation 
marks  are  affixed. 


544  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

some  defect  in  the  qualification  of  the  advocate;  that  the  goods  under 
consideration  being  all  the  enemy's  goods,  are  confiscable;  but  that 
the  paper  for  account-books,  being  of  official  character  and  belonging  to 
the  French  Commercial  Agent  at  Vladivostock,  should  be  released. 

After  due  consideration,  the  Court  concludes  that  this  petition,  hav- 
ing been  filed  by  the  advocate  of  the  petitioner,  in  accordance  with 
the  power  of  attorney  given  him  by  the  representatives  of  the  East 
Asiatic  Company,  Shanghai,  but  that  according  to  the  2nd  clause  of 
Art.  XVII.  of  the  Prize  Court  Regulations,  the  advocate  of  a  peti- 
tioner is  required  to  be  a  Counsellor  at  Law  of  the  Empire,  conse- 
quently this  petition  cannot  be  said  to  conform  to  the  law.  And  if 
the  petition  is  not  lawful,  it  is  proper  to  reject  it  without  examin- 
ing the  argument  of  the  advocate  of  the  petitioner.  Therefore,  the 
decision  as  stated  in  the   text  has  been  given. 

Given  this  26th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  in  the  presence  of  the  Public  Procurator, 
T.  Yamamoto. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


III.     Petition  by  Telegraph. 

Case  I.     The  Manchuria. 
Decision  published  in  the  Official  Gazette,  Tokyo,  Feb.  20,  1905. 
Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  was  given  on  the  31st  of  the  5th  month  of 
the  37th  year  of  Meiji  by  the  Sasebo  Prize  Court,  in  the  case  of  the 
cargo  of  the  Russian  steamship  Manchuria. 

Decision. 

Petitioner — Henry  Schmidt,  German  subject,  Hamburg,  Ger- 
many. 

Advocate — H.  Akao,  Counsellor  at  Law,  46,  4-chome,  Moto- 
hama  Machi,  Yokohama. 

In  the  case  of  the  cargo  of  the  Russian  steamship  Manchuria,  the 
following  decision  has   been  given: 

Text  of  the  Decision. 
The  petition  is  hereby  rejected. 

Facts  and  the  Grounds  of  the  Decision. 
The  advocate  filed  a  petition  requesting  the  release  of   375  chests 
of  Ceylon  tea,  saying  that  he   is  deputed  by  the  petitioner  to  do  so. 


CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  545 

The  advocate,  however,  did  not  produce  any  formal  document  testify- 
ing to  his  power  of  attorney,  but  only  a  telegram.  A  telegram  not 
being  sufficient  as  a  proof  of  such  power,  the  Court  ordered  the  ad- 
vocate to  replace  it  by  a  formal  document.  He  consented  and  asked 
for  a  delay,  which  was  granted  him.  The  period  designated  by  the 
Court  passed,  but  the  advocate  has  not  produced  a  formal  power  of 
attorney.  On  the  contrary,  he  argues  that  as  there  is  no  rule  in 
the  Prize  Court  Regulations  prescribing  the  form  of  a  power  of 
attorney,  such  power  must  be  considered,  according  to  the  principle 
of  Civil  Law,  as  established  by  the  expression  of  intention;  and  he 
requests  that  the  telegram  produced  by  him  be  considered  as  a  lawful 
power  of  attorney,  and  a  decision  given  on  the  case. 

The  purport  of  the  opinion  of  the  Public  Procurator  is  that  as 
the  advocate  has  not  produced  a  formal  power  of  attorney,  he  is  not 
a  lawful  attorney,  and  consequently  the  petition  filed  by  him  is  in- 
valid. Thus  the  petition  is  not  properly  constituted,  and  there  is  no 
need  to  examine  the  case. 

After  due  consideration,  the  Court  concludes  that  as  it  is  pre- 
scribed in  Art.  XX.  of  the  Prize  Court  Regulations,  "  Prize  Courts 
shall  make  rules  governing  the  procedure  of  trial " ;  and  as  this  Court 
has  ruled  that  agency  for  making  a  petition  is  not  effective,  unless 
deputed  by  a  formal  document,  it  is  very  clear  that  any  person  mak- 
ing a  petition  at  this  Court  must  conform  to  this  rule.  The  advocate 
argues  that  there  is  nothing  prescribed  in  the  Prize  Court  Regulations 
concerning  the  form  of  power  of  attorney;  therefore,  according  to  the 
principle  of  Civil  Law,  an  expression  of  intention  is  sufficient.  But 
it  cannot  be  said  that  no  form  is  necessary  to  testify  to  the  legal 
relation  of  agency,  on  the  ground  that  such  relation  is  established  with- 
out form  according  to  the  Civil  Law.  The  advocate  was  instructed 
that  a  formal  power  of  attorney  was  necessary  according  to  the  rules 
made  by  this  Court,  and  was  given  proper  time  to  produce  it;  but 
he  did  not  file  it  in  the  period  designated.  He  must  be  said,  there- 
fore, to  have  no  authority  to  represent  the  petitioner  at  this  Court. 
Thus  the  petition  filed  by  him  is  a  petition  of  one  not  qualified  to 
make  it  and  is  unlawful.  If  the  petition  is  unlawful,  it  ought  to 
be  rejected  and  there  is  no  need  to  examine  it.  Therefore,  the  decision 
as  mentioned  in  the  text  is  given. 

Given  this  31st  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  Sasebo  Prize  Court,  the  Public  Procurator,  S.  Yamamoto,  being 
present. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


546  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  of  Jan.  27,  1905. 

The  following  decision  was  given  on  the  17th  of  the  1st  month  of 
the  38th  year  of  Meiji  by  the  Higher  Prize  Court  in  the  case  of  the 
capture  of  the  Russian  steamship  Manchuria  and  her  cargo. 

Decision. 
Case  No.  XV. 

Petitioner — Henry  Schmidt,  German  subject,  Hamburg,  Ger- 
many. 
Advocate — H.  Akao,  Counsellor  at  Law,  46,  4-chome,  Moto- 
hama  Machi,  Yokohama. 

A  protest  has  been  filed  by  H.  Akao,  advocate  of  the  petitioner, 
Henry  Schmidt,  against  the  decision  of  the  Sasebo  Prize  Court  given 
on  the  3 1st  of  the  6th  month  of  the  37th  year  of  Meiji,  in  the  case 
of  375  boxes  of  Ceylon  tea  carried  by  the  Russian  steamship  Manchuria, 
which  was  captured  by  the  Imperial  man-of-war  Tatsuta,  18  miles 
southeast  of  Port  Arthur,  on  the  9th  day  of  the  2nd  month  of  the 
37th  year  of  Meiji.  The  original  Court  rejected  the  petition  of  the 
said  Henry  Schmidt.  The  case  has  been  heard  at  this  Court,  the 
Public  Procurators  of  the  Higher  Court  K.  Tsuzuki  and  B.  Ishi- 
watari  taking  part  in  the  trial. 

The  purport  of  the  protest  preferred  by  the  advocate  H.  Akao  and 
the  grounds  for  it  are  as  follows: 

The  document  testifying  to  the  power  of  attorney  which  the  ad- 
vocate filed  at  the  Sasebo  Prize  Court,  is  a  telegram  certified  by  a 
Japanese  authority,  and  clearly  proved  that  the  advocate  has  such 
power.  Notwithstanding  this  and  notwithstanding  that  several  trials 
had  been  held  concerning  the  case,  the  same  Court  improperly  rejected 
the  petition.  At  the  time  of  trial  on  the  6th  of  the  5th  month  of  the 
37th  year  of  Meiji,  the  original  Court  ordered  the  advocate  to  pro- 
duce a  real  power  of  attorney  not  later  than  the  26th  of  the  same 
month.  But  correspondence  between  the  advocate  and  the  petitioner 
requires  at  least  eighty  days.  Had  the  power  of  attorney  been  sent 
for  by  telegraph,  the  document  could  not  have  reached  the  hand  of  the 
advocate  in  less  than  forty  days.  It  was  thus  impossible  for  the  ad- 
vocate to  produce  the  document  within  the  period  specified.  He  there- 
fore requested  prolongation  of  the  period.  The  original  Court,  how- 
ever, refused  the  advocate's  request,  and  rejected  the  petition  because 
of  the  advocate's  failure  to  comply  with  the  order  of  the  Court,  which 
was   an   impossibility.      In  Art.    643    of   our   Civil    Code,   it   is    stated 


CHAP.  I.,  SECT.  III.]  JAPANESE  PRINCIPLES  ON  PRIZE  CASES.    547 

"Agency  takes  effect  when  one  of  the  parties  deputes  to  the  other 
party  the  performance  of  a  legal  act,  and  the  latter  accepts  the  duty." 
Respecting  the  case  now  before  the  Court,  the  petitioner  deputed  the 
advocate  by  telegraph  to  sue  for  release  of  375  boxes  of  Ceylon  tea. 
The  advocate  accepted  the  duty  and  instituted  a  petition.  So  the 
power  of  attorney  given  to  the  advocate  must  be  said  to  be  perfect. 
Concerning  the  form  of  a  petition,  there  is  a  rule  in  Art.  XVII.  of 
the  Prize  Court  Regulations,  but  concerning  the  form  of  a  document 
testifying  the  power  of  attorney,  nothing  is  provided.  It  makes  no 
difference,  therefore,  whether  such  power  be  testified  by  a  telegram 
or  any  other  document.  Furthermore,  the  method  of  proving  the  power 
of  attorney  is  not  a  procedure  in  the  adjudication  of  a  prize;  but  the 
Sasebo  Prize  Court  considers  it  to  be  such  a  procedure,  and  notwith- 
standing there  is  no  legally  prescribed  documentary  form  for  a  power 
of  attorney  and  no  prohibition  against  producing  such  power  by  a 
telegram,  has  adjudged  that  a  regular  power  of  attorney  is  required. 
It  is  impossible  to  ascertain  what  the  form  of  a  regular  power  of 
attorney  should  be,  as  it  is  not  mentioned  in  the  decision.  But  if  it 
means  a  document  signed  by  the  principal  and  stamped  with  his 
signet,  the  conclusion  will  be  that  the  petitioner  cannot  make  a  peti- 
tion through  his  agent  as  he  has  jio  signet,  which  is  unreasonable.  On 
these  grounds,  the  advocate  requests  that  the  decision  of  the  Sasebo 
Prize  Court  be  rescinded  and  that  the  375  boxes  of  Ceylon  tea  be 
released. 

The  purport  of  the  answer  of  the  Public  Procurator  of  the  Sasebo 
Prize  Court  is  as  follows: 

It  is  certain  that  the  legal  relation  of  agency  is  established  ac- 
cording to  Civil  Law.  But  if  there  is  no  form  prescribed  in  Civil 
Law  respecting  deputation,  it  cannot  be  said  that  agency  is  perfect 
by  mere  expression  of  intention.  As  to  the  method  of  giving  power 
of  attorney,  it  belongs  to  procedure.  For  instance,  in  a  civil  case  the 
rules  of  Civil  Procedure  must  be  observed  and  a  power  of  attorney 
not  conforming  to  the  rules  of  Art.  64  of  Civil  Procedure  is  invalid. 
So,  in  cases  before  Prize  Courts,  it  is  set  forth  in  the  2nd  clause  of 
Art.  XVI.  of  the  Prize  Court  Regulations  that  "  a  petition  may  be 
made  with  documents  within  30  days  .  .  .";  in  the  2nd  clause  of  Art. 
XVII.,  "A  petitioner  may  appoint  a  Counsellor  at  Law  of  the  Em- 
pire, but  no  other,  as  his  advocate,"  and  in  Art.  XX.,  "besides  the 
provisions  of  the  preceding  articles  the  Prize  Court  will  frame  rules 
of  procedure  governing  trials  within  its  jurisdiction."  At  the  begin- 
ning, the  Sasebo  Prize  Court  decided  that  powers  of  attorney  should 
be  written  documents,  as  in  civil  procedure;  that  in  case  an  advocate 
could  not   produce  his  regular  power  of   attorney  on  account  of  the 


548  NEW   CASES   ON   PRIZE  LAW.  [PART  V. 

petitioner  living  in  a  distant  place,  he  should  be  permitted  to  file 
a  petition  with  a  deputisation  by  telegraph,  and  his  case  would  be 
heard  at  the  oral  trials,  but  that  he  would  be  required  to  deposit 
a  regular  power  of  attorney  afterward.  All  other  advocates  have 
conducted  their  petitions  under  this  procedure.  The  counsel  H.  Akao, 
could  not  procure  a  regular  power  of  attorney  within  the  specified 
period  because  of  his  own  negligence,  for  sufficient  time  was  allowed 
him.  And  now  he  argues  that  deputisation  by  a  telegram  is  enough, 
as  there  is  no  form  of  a  power  of  attorney  specified  in  the  Prize 
Court  Regulations.  His  petition,  therefore,  does  not  conform  to  the 
Regulations,  and  is  of  course  invalid.  A  telegram  is  a  document  in 
a  certain  sense,  and  deputisation  by  telegraph  is  deputisation  by  a 
document.  But  it  is  a  general  rule  that  a  document  must  be  signed 
or  stamped  with  signet.  So  that  a  telegram  which  does  not  bear 
the  sign  manual  or  impression  of  signet,  cannot  be  considered  as  a 
document.  There  is  thus  no  defect  in  the  original  decision,  which 
rejected  the  petition  on  the  ground  that  any  petition  .unaccompanied 
by  a  regular  power  of  attorney  did  not  conform  to  law.  The  protest 
ought,  therefore,  to  be  overruled. 

The  decision  of  this  Court  given  upon  the  protest  is  as  follows: 
The  counsel  Akao,  as  it  is  clear  from  the  records,  produced  to 
prove  his  power  of  attorney  only  a  transcript  of  a  telegram,  certified  by 
the  Yokohama  Post  Office,  and  has  not  deposited  the  regular  power  of 
attorney  ordered  by  the  original  Court.  Thus  his  petition  was  rejected. 
That  proceedings  of  legal  actions  should  be  carried  on  according  to  rules 
to  be  observed  by  the  court  concerned,  is  a  principle  recognised  from 
the  nature  of  such  rules  of  procedures.  The  provision  of  Art.  XX.  of 
the  Prize  Court  Regulations  is  nothing  more  than  an  application  of  this 
principle.  The  Prize  Court  before  giving  a  decision  on  the  petition  under 
consideration,  had  prescribed,  according  to  the  provision  of  Art.  XX.  of 
the  Prize  Court  Regulations,  that  the  Court  would  not  acknowledge 
deputisation  by  telegraph,  and  that  the  advocate  should  be  required  to 
produce  a  regular  power  of  attorney  within  a  period  specified.  In  order 
to  maintain  that  his  petition  conforms  to  law,  therefore,  the  advocate 
must  prove  that  he  has  such  power,  according  to  the  form  and  within 
the  period,  prescribed  by  the  Court.  In  giving  order  to  produce  a  regular 
power  of  attorney,  the  original  Court  had  authority  at  its  discretion 
to  fix  a  period  which  it  considered  sufficient.  Such  period  must  be 
punctually  observed  by  the  advocate,  and  no  violation  of  it  be  per- 
mitted. And  as  the  requirement  for  proving  a  power  of  attorney  is 
an  essential  element  in  constituting  a  lawful  petition,  it  is  very  clear 
that  it  is  part  of  the  rules  of  procedure  before  the  Prize  Court. 
Therefore,  the  advocate's  argument  that  the  period  prescribed  by  the 


CHAP.  I.,  SECT.  III.]  JAPANESE  PRINCIPLES  ON  PRIZE  CASES.    549 

original  Court  was  nothing  but  the  enforcement  of  an  impossibility 
and  that  there  existed  the  deputisation  of  an  agency  between  the 
principle  and  the  advocate  by  the  telegram,  are  both  inadmissible; 
and  the  original  decision  rejecting  the  petition  is   proper. 

The  decision  of  this  Court,  therefore,  is  as  follows: 

The  protest  is  hereby  rejected. 

Given  at  the  Higher  Prize  Court  this  17th  day  of  the  1st  month 
of  the  38th  year  of  Meiji. 

Viscount  F.  Tanaka, 

President  of  the  Higher  Prize  Court. 
Baron  T.  Nishi, 

Councillor  of  the  Higher  Prize  Court. 
N.  Tekashima, 

Councillor  of  the  Higher  Prize  Court. 
K.  Ichiki, 

Councillor  of  the  Higher  Prize  Court. 
S.  Inoue, 

Councillor  of  the  Higher  Prize  Court. 

K.   KlMOTSUKI, 

Councillor  of  the  Higher  Prize  Court. 

S.   TOMITANI, 

Councillor  of  the  Higher  Prize  Court. 
M.  Hashimoto, 

Councillor  of  the  Higher  Prize  Court. 
Y.  Yamaza, 

Councillor  of  the  Higher  Prize  Court. 

Case  II.     The  Resnih. 
Decision  published  in  the  Official  Gazette,  of  June  24,  1904. 
Decision   of  the   Higher  Prize   Court. 
The  following  decision   has   been  given   by  the  Higher  Prize   Court 
on  the  Russian  sailing  vessel  Resnik  and  her  cargo,  on  the  17th  of  the 
6th  month  of  the  37th  year  of  Meiji. 

Decision. 

Petitioner — Serge    Runiju  (?),    Directeur    d'Agriculture,    St. 

Petersburg,  Russia. 
Advocate — W.    Nagashima,   Counsellor   at  Law,    10,  Kaga- 

eho,  Kyobashi-ku,  Tokyo. 

The  advocate  of  the  petitioner  has  filed  in  this  Court  an  appeal, 
protesting  against  the  decision  given   by   the   Sasebo   Prize  Court,   on 


550  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

the  18th  of  the  4th  month  of  the  37th  year  of  Meiji,  upon  a  peti- 
tion made  in  regard  to  the  capture  of  the  Russian  sailing  vessel 
Resnik  and  her  cargo,  rejecting  the  petition,  and  the  case  has  been 
tried  in  the  presence  of  the  Public  Procurators,  K.  Tsutsuki  and  B. 
Ishiwatari. 

The  purport  of  the  protest  of  the  advocate  of  the  petitioner  is 
that,  in  accordance  with  an  advertisement  in  the  Official  Gazette  of 
the  9th  of  the  3rd  month  of  the  37th  year  of  Meiji,  the  advocate  of 
the  petitioner  filed  a  petition  in  regard  to  the  capture  of  the  Russian 
sailing  vessel  Resnik  and  her  cargo.  The  petition  was  sent  by  telegram, 
the  time  being  short;  and  notwithstanding  the  lawfulness  of  the  peti- 
tion, it  was  rejected  on  the  16th  of  the  4th  month  of  37th  year  of  Meiji, 
as  not  conforming  to  the  law.  The  Prize  Court  Regulations  do  not, 
however,  prescribe  any  form  for  a  petition,  and  the  advocate  thinks 
that  it  is  enough,  if  the  intention  to  make  a  petition  is  given  within 
the  period,  whether  it  be  by  telegram  or  by  mail.  Especially  in  this 
case,  the  telegram  instructing  the  advocate  to  express  the  intention 
to  petition  was  received  at  the  Tokyo  Post  Office  at  4.35  p.m.  of  the 
6th  of  the  4th  month  of  the  37th  year  of  Meiji,  and  later  delivered 
to  the  advocate.  So  that  even  if  the  petition  had  been  sent  by  the 
railroad  train  leaving  Shimbashi  at  9.30  p.m.,  the  same  day,  it  would 
not  have  arrived  at  the  Prize  Court,  Sasebo,  until  the  afternoon  of  the 
9th  or  the  forenoon  of  the  10th.  Such  being  the  case  there  was  no 
other  means  to  make  known  the  intention  to  petition;  and  the  ad- 
vocate sent  first  a  telegram  to  express  his  intention  to  make  a  petition 
and  then  mailed  an  ordinary  petition  to  make  the  document  com- 
plete. Thus  the  case  is  quite  different  from  one  in  which  a  petition 
is  not  filed  within  the  proper  period.  The  advocate,  therefore,  peti- 
tions that  the  case  be  specially  treated  and  the  original  decision  be 
reversed. 

The  reason  of  the  decision  on  the  case  under  consideration  is  ex- 
plained as   follows: 

According  to  Art.  XVII.  of  the  Prize  Court  Regulations,  not  only 
must  a  petition  specify  the  grounds  on  which  it  is  made  and  be 
accompanied  by  documents  and  articles  in  proof  of  them,  but  in  case 
a  petition  is  made  through  an  advocate,  such  advocate  must  be  a 
Counsellor  at  Law  practising  in  the  Empire.  So  that  in  order  to  make 
a  petition  through  an  advocate,  as  in  the  case  now  under  considera- 
tion, the  petition  niust  be  accompanied  by  a  document  sufficient  to 
prove  his  authority.  On  examining  the  records  concerning  the  case 
before  this  Court,  the  advocate  of  the  petitioner,  in  communicating 
his  intention  of  making  petition  by  telegraph,  on  the  8th  of  the  4th 
month  of  the  37th  year  of  Meiji,  did  not  produce  anything  to  show 


CHAP.  I.,  SECT.  III.]   JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  551 

his  authority,  and  after  the  lapse  of  the  period  allowed  for  making 
petitions,  on  the  11th  of  the  same  month,  same  year,  he  for  the  first 
time  deposited  a  petition  accompanied  by  a  telegram  showing  his 
authority.  So  that  the  petition  cannot,  of  course,  be  said  to  have 
been  filed  within  the  period  allowed.  The  rejection  of  the  petition  by 
the  original  Prize  Court,  as  not  having  been  filed  within  the  time  pre- 
scribed, is  proper,  and  there  is  no  ground  for  the  protest. 

The  decision  of  this  Court  on  the  case  is,  therefore,  as  follows: 
The  petition  now  before  the  Court  is  hereby  rejected. 
Given  at  the  Higher  Prize  Court  this   17th  day  of  the  6th  month 
of  the  37th  year  of  Meiji. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 

Case  II.     The  Manchuria  (cargo). 
Published  in  the  Official  Gazette,  Tokyo,  27th  May,  1904. 

Decision. 
Petition  No.  II. 

Petitioners — Ruck    Versicherungs    Gesellschaft,    Mlinchen, 

Germany. 
Advocate — Y.    Nagashima,    Counsellor    at    Law,    No.    10, 
Kagacho,  Kyobashi,  Tokyo. 

The  petition  by  the  telegram  addressed  to  this  Prize  Court  by  the 
petitioners  with  the  date  of  the  14th  of  March,  1904,  in  saying,  "  We 
beg  to  make  a  petition  concerning  the  tea,  paper,  and  other  cargoes 
on  the  Manchuria,"  is  not  considered  to  be  a  petition  in  due  form  and 
is  hereby  rejected. 

The  18th  day  of  the  4th  month  of  the  37th  year  of  Meiji. 
(Signed)     I.  Matsumura, 

President  of  the  Sasebo  Prise  Court. 

IV.     Petition  to  Establish  Prior  Right  to  the  Vessel. 

Case.     The  Nigretia. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Nov.  16,  1905. 

Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  was  given  on  the  17th  of  the  4th  month  of 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court,  to  a  petition  pray- 
ing  the   recognition   of   the    right   of   preference    against   the    British 
steamship  Nigretia. 


552  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Decision. 
Petition  No.  I. 

Petitioners — Mitsubishi  Goshi  Kwaisha,   1,  1-chome,  Yaesu 

Cho,  Kojimachi  Ku,  Tokyo. 
Legal  representative — H.  Iwasaki,  Managing  partner. 
Attorneys — T.  Takagi,  Counsellor  at  Law. 

T.   Nakamura,    Counsellor    at   Law,    No.   3,    1- 
chome,  Uchisaiwai  Cho,  Kojimachi  Ku,  Tokyo. 

To  the  petition  praying  the  recognition  of  the  right  of  preference 
against  the  British  steamship  Nigretia,  the  decision  is  given  as  follows : 

Text  of  Decision. 

This  petition  is  hereby  rejected. 

Facts  and  Reasoning. 

The  main  points  of  the  statement  of  the  attorneys  for  the  petitioner 
are : 

The  petitioner  chartered  the  British  steamship  Nigretia,  from  the 
14th  of  the  4th  month  of  the  37th  year  of  Meiji,  to  the  24th  of  the 
10th  month  of  the  same  year.  On  the  19th  of  the  10th  month  in  the 
same  year,  this  ship  stranded  near  Toungry  Pagoda,  about  67  nautical 
miles  down  the  river  of  Kiukiang,  China,  so  the  petitioner  took  all 
means  for  her  salvage  and  thereby  spent  yen  4379.50.  The  above 
being  expenditure  for  general  salvage  the  petitioner  claims  a  preferen- 
tial right  against  this  ship  for  the  said  amount.  This  ship,  however, 
after  the  expiration  of  the  term  of  charter  by  the  petitioner,  was 
captured  by  the  Japanese  man-of-war  Tsushima  on  the  19th  of  the 
12th  month  of  the  same  year,  in  N.  lat.  35°  18'  and  E.  long.  129°  50'. 
The  reason  of  the  capture  is  a  matter  indifferent  to  the  petitioner. 
But  as  explained  above,  he  acquired  an  actual  preferential  right 
against  this  ship  and  is  in  a  position  entitled  to  set  up  that  right 
against  any  third  party.  Hence,  whoever  has  acquired  any  right  to 
this  ship  must  recognise  the  above  right  of  the  petitioner.  It  may 
be  gainsaid  that,  although  the  petitioner's  right  is  good  under  civil 
law,  it  cannot  be  claimed  in  a  case  such  as  capture  under  public  law. 
But  the  jurisprudence  of  International  Law  has  developed  lately  and 
tends  more  and  more  to  respect  the  rights  of  private  persons.  And  in 
No.  2  of  Art.  XVI.  of  the  Japanese  Prize  Court  Regulations,  it  is 
stipulated  that  not  only  those  who  claim  ownership  of  things  cap- 
tured, but  those  who  have  interest  in  them,  are  entitled  to  institute  a 
petition.  Consequently  it  must  be  admitted  that  a  claimant  of  a  prefer- 
ential right,  like  the  petitioner,  is  also  entitled  to  the  protection  of 
the   above   regulation.     The  preferential   right  in   consideration   being 


CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  553 

an  actual  right  recognised  by  law,  and  not  based  upon  a  voluntary 
contract  like  a  mortgage,  no  fraud  can  be  committed  by  claiming  it; 
and  therefore  it  should  be  reasonably  protected.  Moreover,  the  right 
of  capture  will  not  be  affected  in  any  degree  by  giving  protection  to 
this  right.  For  the  above  reasons,  judgment  admitting  the  petitioner's 
preferential  right  against  the  steamship  Nigretia  to  the  amount  of 
yen  4379.57,  the  expenditure  for  her  salvage,  should  be  given. 

The  main  points  of  the  opinion  of  the  Public  Procurator  are:  The 
petitioner  is  not  a  party  who  has  any  interest  in  this  ship.  Even 
supposing  he  has  an  interest,  this  petition  not  being  to  claim  the 
confiscation  or  release  of  the  ship,  but  to  pray  for  the  recognition  of 
a  preferential  right  against  this  ship  based  upon  certain  obligations, 
should  not  be  adjudicated  at  a  Prize  Court.  Therefore  it  should  be 
rejected. 

After  due   consideration  the   Court  concludes   as   follows: 

Although  the  petitioner  spent  the  sum  of  yen  4379.57  for  the  sal- 
vage of  the  steamship  Nigretia,  the  Japanese  regulations  do  not  rec- 
ognise any  preferential  right  against  things  captured.  Moreover,  ac- 
cording to  International  Law,  the  right  of  a  captor  being  absolute, 
neither  the  real  right  nor  the  obligatory  right  of  a  third  party  can 
be  set  up  against  it.  The  attorneys  for  the  petitioner  contend  that 
as  No.  2  of  Art.  XVI.  of  'the  Japanese  Prize  Court  Regulations  ad- 
mits the  right  of  petition  not  only  to  the  claimant  of  the  ownership 
of  the  thing  captured,  but  also  to  those  who  have  an  interest  in  it, 
the  preferential  right  in  consideration  should  be  protected  by  that 
regulation.  But  though  the  said  regulation  stipulates  that  the  right 
of  petition  is  not  limited  to  owners,  yet  it  does  not  necessarily  fol- 
low that  a  preferential  right  against  the  thing  captured,  should  be 
protected  by  that  stipulation.  For  the  above  reasons,  the  claim  of 
the  attorneys  for  the  petitioner  for  the  recognition  of  a  preferential 
right  against  the  ship,  is  groundless. 

The   decision   is  therefore  given   as  in  the  text. 

Given  this  17th  day  of  the  4th  month  of  the  38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  C.  Minakami,  taking 
part. 

(Signed)     The  Presideisyt  and  Councillors  of  the 
Sasebo  Prize  Court. 

The  Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  Nov.  16,  1905. 

The  following  decision  was  given  on  the  2nd  of  the  11th  month  of 
the  38th  year  of  Meiji,  by  the  Higher  Prize  Court  in  the  appeal  case 


554  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

of   the    petition    praying   for    the   recognition   of   a   preferential    right 
against  the  British  steamship  Nigretia. 

Decision. 
Case  No.  XLVI. 

Petitioner — Mitsubishi  Goshi  Kwaisha,  1,   1-chome,  Yaesu 

Cho,  Kojimachi  Ku,  Tokyo. 
Legal  representative — H.  Iwasaki,  Managing  partner. 
Attorneys — T.  Takagi,  Counsellor  at  Law. 

T.  Nakamura,  Counsellor  at  Law,  3,  Uchisaiwai 
Cho,  1-chome,  Kojimachi  Ku,  Tokyo. 

In  the  petition  for  recognition  of  a  preferential  right  against  the 
British  steamship  Nigretia,  the  Sasebo  Prize  Court  gave  decision  on 
the  17th  of  the  4th  month  of  the  38th  year  of  Meiji,  rejecting  the  pe- 
tition. Whereas,  T.  Takagi  and  T.  Nakamura,  attorneys  for  H.  Iwasaki, 
legal  representative  of  the  said  petitioners,  the  Mitsubishi  Goshi  Kwaisha, 
have  filed  an  appeal  against  the  said  decision,  the  case  has  been  exam- 
ined and  the  following  decision  is  given,  K.  Tsuzuki  and  B.  Ishiwatari, 
Public  Procurators  of  the  Higher  Prize  Court,  taking  part. 

The  appeal  by  T.  Takagi  and  T.  Nakamura,  attorneys  for  the  pe- 
titioners against  the  original  decision  and  for  the  recognition  of  their 
preferential  right  to  yen  4379.57  for  salvage  expenses  against  British 
steamship  Nigretia  is  based  upon  the  following  reasons: 

The  question  whether  or  not  a  preferential  right,  as  claimed  by 
the  petitioners,  can  be  claimed  against  a  captured  ship,  is  the  main 
issue  of  this  case.  The  original  court  ruled  that  the  Japanese  regula- 
tions do  not  recognise  any  preferential  right  against  things  captured, 
and  that  according  to  International  Law,  the  right  of  a  captor  being 
absolute,  neither  the  real  right  nor  the  obligatory  right  of  a  third 
party  can  be  set  up  against  it.  But  in  Art.  XVI.  of  the  Japanese 
Prize  Court  Regulations,  it  is  stipulated  that  when  the  Public  Procu- 
rator gives  his  opinion  in  writing  in  favour  of  condemnation,  or  when 
the  Prize  Court  deems  the  Public  Procurator's  opinion  for  immediate 
release  unreasonable,  the  Court  shall  take  steps  to  make  public  noti- 
fication; and  that  in  the  above  notification  it  shall  be  mentioned  that 
those  who  have  an  interest  are  entitled  to  file  a  petition  in  writing 
within  thirty  days,  including  the  day  following  the  date  of  notification. 
According  to  this  stipulation  the  right  of  petition  is  generally  ad- 
mitted to  those  who  are  interested  in  the  condemnation,  and  it  is 
evident  that  the  wording  "  those  who  are  interested "  does  not  mean 
the  owners  only.  The  holder  of  a  preferential  right  being  undoubtedly 
an  interested  party  it  is  needless  to  say  that  the  petitioners  may  be 


CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  555 

» 

included  among  "  those  who  have  interest "  as  set  forth  in  the  above 
stipulation.  Notwithstanding  that  the  above  stipulation  is  in  such 
broad  terms,  the  original  Court  took  a  narrow  view,  interpreting  the 
words  "  those  who  are  interested "  to  mean  owners,  and  ruled  that 
a  preferential  right  is  not  recognised  in  the  Japanese  Regulations. 
This  ruling  was  undoubtedly  wrong.  Not  only  was  the  original  de- 
cision mistaken  in  the  interpretation  of  the  Japanese  Prize  Court 
Regulations,  but  it  does  not  agree  with  the  principle  of  International 
Law.  The  original  Court  held  that  according  to  International  Law,  the 
right  of  a  captor  being  absolute,  neither  the  real  right  nor  the  obli- 
gatory right  of  a  third  party  can  be  set  up  against  it.  But  such  a 
principle  has  not  yet  been  confirmed  in  International  Law.  On  the 
contrary,  there  are  some  scholars  who  maintain  that  such  a  right 
as  claimed  by  this  petition  should  be  respected,  because  it  is  a  right 
accruing  from  the  rescue  of  the  life  of  a  ship.  Now  from  a  legal  point 
of  view,  it  is  agreed  in  the  laws  and  regulations  of  all  nations  that 
the  expenses  of  general  salvage,  as  in  this  case,  are  entitled  to  prefer- 
ential right  against  the  ship,  and  there  is  neither  law  nor  regulation 
which  has  an  opposite  stipulation.  Consequently,  the  above  rule  must 
be  held  as  an  international  rule.  A  preferential  right  being  a  real 
right  may  be  claimed  'against  a  ship  wherever  she  is;  and  nothing 
burdened  with  such  a  right  can  be  the  object  of  perfect  (uncondi- 
tional) ownership.  Hence,  in  the  confiscation  of  a  ship  burdened 
with  a  preferential  right,  the  confiscator  must  admit  that  burden. 
Generally  speaking,  confiscation  of  contraband  of  war,  etc.,  as  stip- 
ulated in  Arts.  XLII.  and  XLIII.  of  the  Japanese  Regulations  Gov- 
erning Captures  at  Sea,  is  a  penalty  inflicted  upon  a  person  who  has 
committed  an  unlawful  act;  so  it  is  needless  to  say  that  the  real 
right  of  a  third  party,  who  had  nothing  to  do  with  the  unlawful  act, 
should  not  be  affected  by  this  penalty.  As  the  foregoing  shows,  a 
third  party,  as  the  appellants,  who  have  a  real  right  against  the  "thing 
captured,  should  be  protected  according  to  International  Law.  There- 
fore, the  decision  of  the  original  Court  rejecting  the  claim  of  the 
petitioners  as  groundless,  must  be  regarded  as  unreasonable.  As  to 
the  form  of  this  petition,  the  Public  Procurator  of  the  original  Court 
argued  that  since  it  was  not  to  pray  for  the  release  of  a  ship  but  for 
the  recognition  of  a  preferential  right  against  a  ship,  it  was  not  in 
due  form.  But  as  explained  before,  a  petition  is  an  action  to  be  filed 
according  to  Art.  XVI.  of  the  Prize  Court  Regulations,  by  a  party 
whose  interest  may  be  infringed  by  the  confiscation  of  a  ship,  her  cargo, 
or  any  other  thing,  hence  an  action  praying  for  remedy  or  protection 
from  such  infringement,  should  be  admitted  by  the  Court  without  re- 
gard   to    its    form.      Although    the    Prize    Court    Regulations    do    not 


556  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

stipulate  that  the  form  of  a  petition  must  necessarily  be  to  pray 
for  the  release  of  the  thing  captured,  the  Public  Procurator's  view 
that  the  form  is  limited  to  that  matter,  cannot  be  admitted  as  a  cor- 
rect interpretation  of  the  spirit  of  the  above  regulations.  If  a  ship 
or  a  cargo  were  sunk  by  a  Japanese  man-of-war  without  any  offence, 
the  petition  to  be  instituted  by  the  owner  of  that  ship  or  cargo  would 
certainly  be  in  a  form  demanding  the  recovery  of  damages.  If  such 
petition  were  rejected  on  the  ground  that  it  was  not  in  a  form  pray- 
ing for  release,  then  the  right  party  would  have  no  remedy  at  all. 
There  may  be  some  who  argue  that  matters  under  the  jurisdiction  of 
Prize  Courts  are  limited  to  two  questions,  namely  whether  to  release 
or  whether  to  confiscate,  because  Art.  XIII.  of  the  Prize  Court  Regu- 
lations stipulates  that  the  Councillor  in  charge  of  a  case  shall  de- 
cide whether  the  whole  or  a  part  of  the  things  captured  should  be 
confiscated  or  released.  But  the  above  article  merely  prescribing  the 
procedure  of  examination  of  facts  in  general  and  ordinary  cases,  does 
not  govern  the  form  of  a  petition,  and  cannot  be  made  the  ground  for 
deciding  whether  or  not  a  petition  is  in  due  form.  Again,  it  may 
be  argued  that  a  petition  cannot  be  allowed  unless  its  object  is  to 
dispute  whether  or  not  the  confiscation  was  reasonable.  But  this  pe- 
tition is  to  pray  for  the  recognition  of  a  preferential  right,  on  the 
ground  that  the  petitioner  has  that  right  against  the  thing  captured; 
in  other  words,  the  main  points  of  this  petition  are  to  state  that  the 
confiscation  of  this  ship  in  the  same  manner  as  an  ordinary  ship  not 
burdened  with  such  a  right  is  unreasonable.  Hence,  this  petition 
must  be  held  to  be  a  petition  to  dispute  whether  or  not  the  confisca- 
tion was  reasonable.  As  the  foregoing  shows,  this  petition  is  formal 
and  has  a  lawful  ground,  and  its  rejection  by  the  original  Court  was 
unreasonable. 

The  main  points  of  the  response  of  C.  Minakami,  Public  Procurator 
of  the  Sasebo  Prize  Court,  are: 

The  function  of  the  Japanese  Prize  Court  is  to  consider  and  de- 
cide whether  a  thing  captured  should  be  confiscated  or  released,  and 
the  Court  has  no  authority  to  judge  questions  relating  to  preferential 
rights  as  claimed  by  the  petitioner.  Moreover,  the  Japanese  regula- 
tions have  no  stipulation  admitting  preferential  rights.  Hence,  this 
petition  praying  for  the  recognition  of  preferential  rights  against  this 
ship  is  groundless.  The  petitioner  makes  several  arguments,  but  they 
are  nothing  more  than  the  repetition  of  the  same  argument,  and  none 
of  them  is  reasonable.     Therefore,  this  appeal  should  be  rejected. 

The  reasons  of  decision  by  the  Higher  Prize  Court  are  given  as 
follows : 

The    appellant    contends    that    the    original    decision    rejecting    the 


CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  557 

petition  for  the  recognition  of  a  preferential  right  against  the  steam- 
ship Nigretia  is  unreasonable.  But  a  Prize  Court  has  no  jurisdiction 
to  examine  petitions  for  the  recognition  of  preferential  rights,  hence 
the  rejection  of  such  petition  by  the  original  Court  was  quite  reason- 
able. As  to  the  appellant's  appeal  on  the  ground  that  they  are  an 
interested  party  and  that  a  third  party  who  has  a  real  right,  such 
as  this  preferential  right,  should  be  protected,  there  is  no  need  of 
giving  any  explanation. 

The  decision  is  therefore  given  as  follows: 

This  appeal  is  hereby  dismissed. 

Given  this  2nd  day  of  the  11th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 

V.  Petition  for  Release  of  the  Vessel,  Establishment  of  Prior 
Right  or  Payment  of  Claim,  in  Order  to  Have  Claim  Against 
the  Vessel  Satisfied. 

Case.      The  Russia. 
Decision  published  in  the  Official  Gazette,  June  22,  1904. 
Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  has  been  given  by  the  Sasebo  Prize  Court 
on  the  Russian  steamship  Russia,  26th  of  the  5th  month  of  the  37th 
year    of    Meiji. 

Petition  No.  I. 

Decision. 

Petitioner— W.  H.  Gill,  Gill  &  Co.,  No.  74,  Kyo-machi,  Kobe. 
Advocate — Kazuhisa    Sakurai,    Counsellor    at   Law,   54,   4- 
chome,  Kita-Nagasa-Dori,  Kobe. 

Concerning  the  petition  in  relation  to  claims  against  the  owner  of 
the  Russian  steamship  Russia,  the  following  decision  is  given: 

Text  of  the  Decision. 
The  petition  under  consideration  is  hereby  rejected. 

Facts  and  Ground  of  the  Decision. 
The  gist  of  the  petition  made  by  the  advocate  of  the  petitioner  is: 
During  the  stay  of  the  Russia  at  Kobe,  which  port  she  entered  on 
the  14th  of  the  11th  month  of  the  37th  year  of  Meiji,  the  petitioner 
had,  in  compliance  with  the  request  of  the  agent  of  the  ship's  owner 
at  Vladivostock,   paid  the  expenses  necessary  for  the  ship  to  resume 


558  NEW   CASES   ON   PRIZE   LAW,  [PART  V. 

her  voyage,  which  expenses  together  with  his  own  remuneration  the 
petitioner  is  entitled  to  receive  as  an  agent  of  the  said  ship,  amount- 
ing to  yen  18,116.91.  The  petitioner,  having  received  the  sum  of  yen 
3043.51  for  freightage,  was  entitled  to  receive  from  the  owner  of  the 
said  ship  the  balance,  that  is,  the  sum  of  yen  15,073.40.  Now,  be- 
fore the  petitioner  had  received  this  sum,  the  ship  was  captured  by 
an  Imperial  man-of-war,  on  the  7th  day  of  the  2nd  month  of  the 
37th  year  of  Meiji.  In  order,  therefore,  that  the  petitioner  may  be 
enabled  to  obtain  the  payment  of  his  claim,  he  petitions : 

First,  that  the  just  claim  of  the  subject  of  a  neutral  country  upon 
a  prize  of  war  may  be  respected,  and  that  the  steamship  Russia  may 
be  released.  Even  if  the  above  view  is  inadmissible,  the  capture  of 
the  steamship  Russia,  having  taken  place  at  about  7  a.m.  of  the  7th 
of  the  2nd  month  of  this  year,  is  unlawful,  and  consequently  she 
ought  to  be  released,  for  the  announcement  of  the  rupture  of  friendly 
intercourse  between  Japan  and  Russia  was  made  by  the  former  to  the 
latter  Government  on  the  6th  of  the  2nd  month,  but  it  is  not  specified 
at  what  o'clock  it  was  made;  therefore  the  common  inference  is  that 
it  was  made  at  12  (midnight)  of  the  6th.  This  time  not  being  earlier 
than  8  a.m.  of  the  7th,  in  Korea  and  Japan,  the  capture  took  place 
before  the  state  of  war  actually  existed  between  the  two  states. 

Secondly,  that  in  case  the  said  ship  be  not  released,  it  may  be  ad- 
judged that  the  petitioner's  claim  has  a  prior  right  upon  the  prize. 

Thirdly,  that  in  case  neither  of  the  above  requests  be  granted,  it 
may  be  adjudged  that  the  petitioner's  claim  be  paid  from  the  public 
treasury. 

The  above  is  the  purport  of  the  petition,  and  to  prove  the  ex- 
istence of  such  claim  the  petitioner  produced  evidence  (A)  Nos.  1 
to  20. 

The  substance  of  the  opinion  of  the  Public  Procurator  is  that  the 
argument  of  the  petitioner  insisting  upon  the  release  of  the  steamship 
Russia  is  groundless,  but  that  if  the  claim  of  the  petitioner  was 
created  by  defraying  expenses  necessary  to  save  the  ship  from  destruc- 
tion or  to  continue  her  voyage,  such  claim  may,  theoretically  speaking, 
remain  inseparable  from  the  prize  in  case  of  capture.  However,  there 
being  no  provision  in  our  Prize  Court  Regulations  concerning  the  sub- 
ject, it  is  doubtful  whether  such  decision  can  be  given. 

After  due  consideration,  from  the  evidence  produced  by  the  peti- 
tioner and  the  testimony  given  in  this  Court  by  Peter  Gruenberg, 
the  master  of  the  Russia,  we  recognise  the  existence  of  the  claim  un- 
der consideration.  But  first,  the  argument  of  the  advocate  of  the 
petitioner  that  the  capture  of  the  said  ship  was  unlawful,  having  been 
made  before  the  war,   is  groundless,   as  it  is   clear  that  the  capture 


CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  559 

• 

was  made  after  the  6th  of  the  2nd  month  of  this  year,  when  the  state 
of  war  commenced  between  Japan  and  Russia.  And  if  the  ship  is  a 
lawful  prize,  she  cannot  be  released  on  account  of  a  neutral  person 
having  a  claim  against  her.  Secondly,  even  though  the  petitioner's 
claim  was  created  by  the  disbursement  of  the  ship's  necessary  expenses 
for  continuance  of  the  voyage,  a  third  party  has  no  right  to  make 
any  claim  upon  the  property,  as  not  only  is  there  no  provision  in  our 
Prize  Court  Regulations  recognising  a  prior  claim  upon  a  prize,  but 
according  to  International  Law  the  right  of  the  captor  to  a  prize 
confiscated  as  the  enemy's  property  is  absolute.  Thus  the  second 
point  of  the  argument  of  the  petitioner's  advocate  is  also  untenable. 
Thirdly,  that  the  petitioner  has  no  right  to  claim  upon  the  public 
treasury  is  clear  from  what  has  been  explained;  but  the  question  of 
redemption  by  the  public  treasury  is  beyond  the  jurisdiction  of  this 
Court.  Under  such  grounds  the  decision  as  stated  in  the  text  has 
been  given. 

Given  this  26th  of  the  5th  month  of  the  37th  year  of  Meiji,  at  the 
Sasebo  Prize  Court  in  the  presence  of  the  Public  Procurator,  Yama- 
moto. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

VI.     Petition  for  Temporary  Attachment  of  a  Prize. 

Case.     The  Mukden. 
Decision  published  in  the  Official  Gazette,  Tokyo,  June  22,  1904. 
Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  has  been  given  by  the  Sasebo  Prize   Court, 
on  the  cargo  of  the  Russian  steamship  Mukden,  on  the  26th  of  the  5th 
month  of  the  37th  year  of  Meiji. 

Petition  No.  V. 

Decision. 

Petitioner — Yuan-tsu-chuang,  Chinese  subject,  99,  1-chome, 

Shimoyamate-dori,  Kobe. 
Advocate— K.    Moriya,    Counsellor  at  Law,   5,   Sayegi-cho, 

Kyobashi-ku,  Tokyo. 
Advocate — Imamura,  Counsellor  at  Law,  14,  2-chome,  Ima- 

gawakoji,  Kanda,  Tokyo. 
Advocate — I.  Shimidzu,  Counsellor  at  Law,  2,  Hiyoshi  Cho, 

Kyobashi-ku,  Tokyo. 

In  the  case  of  capture  of  the  cargo  of  the  Russian  steamship  Muk- 
den, the  following  decision  has  been  given: 


560  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Text  of  the  Decision. 

This  petition  is  hereby  rejected. 

Facts  and  the  Grounds  of  the  Decision. 

The  gist  of  the  statement  of  K.  Moriya,  advocate  of  the  petitioner, 
is  as  follows :  The  Russo- Chinese  Bank,  a  joint  stock  company,  alleges 
that  the  petitioner,  while  officiating  in  the  Bank,  had  incurred  a  cer- 
tain amount  of  indebtedness  to  the  Bank.  The  Bank  brought  an 
action  on  the  26th  of  the  6th  month  of  the  36th  year  of  Meiji, 
in  the  Tokyo  District  Court,  demanding  the  repayment  of  the  sum 
of  yen  175,971.10,  and  on  the  25th  day  of  the  7th  month  of  the 
same  year,  the  Bank  brought  another  action  demanding  the  repay- 
ment of  the  two  sums  of  yen  70,000  and  yen  47,555.54.  The  peti- 
tioner refused  to  pay  the  demand  of  the  Bank,  and  on  the  10th  of 
the  7th  month  of  the  same  year  instituted  a  counter-action  against 
the  Bank  demanding  damages  of  yen  535,307.00  and  the  lawsuit  is 
now  pending  in  Court.  The  petitioner  having  heard  that  the  Russo- 
Chinese  Bank  was  going  to  shut  its  branch  office  and  to  withdraw  to 
its  own  country,  petitioned  a  temporary  attachment  of  the  Bank's 
corporeal  movable  property  in  order  to  secure  the  execution,  and  on 
the  12th  of  the  2nd  month  of  the  37th  year  of  Meiji,  the  Tokyo  Dis- 
trict Court  issued  an  order  for  attachment  of  the  Bank's  corporeal 
movable  property,  against  the  sum  of  yen  359,355.90.  When  the  at- 
tachment was  enforced  according  to  this  order  at  the  Bank,  only 
yen  7600  worth  of  movables  was  found,  leaving  a  deficit  of  yen  351,- 
735.90.  Now,  the  Russian  steamer  Mukden,  which  was  captured  by 
the  Imperial  man-of-war  Tatsuta  on  the  7th  of  the  2nd  month  of  the 
37th  year  of  Meiji,  has  in  her  cargo  10,000  rubles  belonging  to  the 
Russo-Chinese  Bank,  and  in  case  the  10,000  rubles  be  condemned,  the 
petitioner  would  not  be  able  to  attach  the  above  money  as  mentioned. 
He,  therefore,  petitions  (1)  that  the  above-mentioned  10,000  rubles 
may  be  released  as  the  property  of  the  Russo-Chinese  Bank;  (2)  that 
when  the  money  is  released,  procedure  may  be  taken  at  the  same  time 
for  the  attachment  of  the  property  to  make  secure  the  execution  of 
the  right  of  action  of  the  petitioner;  and  (3)  that  even  if  the  peti- 
tion No.  1  be  not  granted,  if  the  property  be  released  for  any  other 
reason,  procedure  may  be  taken  for  the  attachment  of  the  property 
to  make  secure  the  execution  of  the  right  of  action  of  the  petitioner. 
And  to  prove  the  above  facts  the  petitioner  has  produced  copies  of 
the  order  for  the  temporary  attachment,  the  record  of  the  attachment 
of  the  corporeal  movable  property,  and  the  record  of  the  continuance 
of  attachment  of  the  same. 

The   gist   of   the   argument   of   the   Public    Procurator   is   that   the 


CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  561 

petitioner  is  not  entitled  to  make  such  petition,  as  it  is  clear  that 
he  is  not  directly  interested  in  the  money,  even  from  his  own  state- 
ments, and  even  if  it  is  admitted  that  he  is  entitled  to  make  such 
petition,  there  is  no  reason  to  release  the  10,000  rubles  on  that  ac- 
count; and  that  the  petition  for  temporary  attachment  is  unlawful  as 
the  Procurator  thinks  that  a  Prize  Court  ought  not  to  issue  an  order 
for  attachment  of  captured  goods. 

After  due  consideration  the  Court  concludes:  According  to  Art. 
XVI.  of  the  Prize  Court  Regulations  of  Japan,  an  interested  party, 
who  desires  to  make  a  petition,  has  to  file  it  within  30  days,  count- 
ing from  the  day  after  the  advertisement,  and  any  petition  made  after 
the  lapse  of  this  period  is  to  be  rejected.  This  Court  advertised  in 
the  Official  Gazette,  on  the  1st  of  the  3rd  month  of  the  37th  year  of 
Meiji,  that  petition  might  be  made  in  regard  to  the  10,000  rubles 
under  consideration,  and  it  is  clear  that  no  petition  could  be  ac- 
cepted after  30  days,  reckoning  from  the  day  after  the  advertise- 
ment. On  examining  the  petition  filed  by  the  petitioner  under  date 
of  the  18th  of  the  3rd  month  of  the  37th  year  of  Meiji,  it  says, 
".  .  .  the  sum  of  10,000  rubles,  which  is  in  the  cargo  of  the  Russian 
steamship  Mukden,  belongs  to  the  Russo-Chinese  Bank,  and  if  the 
said  10,000  rubles  be  condemned  as  prize,  the  petitioner  will  not  be 
able  to  attach  it  as  corporeal  movable  property  mentioned  above,  and 
consequently  his  interest  will  be  injured."  And  under  the  heading  of 
"  Request,"  he  says,  "  The  10,000  rubles  carried  by  the  captured  Rus- 
sian steamer  Mukden  may  be  attached  as  the  property  of  the  Russo- 
Chinese  Bank  according  to  the  Order  of  Temporary  Attachment  of 
Movable  Property  No.  36  of  the  37th  year  of  Meiji,  issued  by  the 
Tokyo  District  Court."  From  facts,  it  is  very  clear  that  the  object 
of  the  petition  under  consideration  is  only  a  request  for  temporary 
attachment.  At  the  time  of  the  oral  trial  on  the  20th  of  the  4th 
month  of  the  37th  year  of  Meiji,  the  advocate  of  the  petitioner  made 
an  oral  petition  requesting  release  of  the  10,000  rubles,  and  the  same 
day  he  filed  a  document  of  the  same  purport  as  an  additional  peti- 
tion. But  the  procedure  of  temporary  attachment,  being  a  measure 
for  guaranteeing  compulsory  execution,  is  quite  different  in  its  na- 
ture from  the  release  of  goods,  and  consequently  it  is  not  lawful 
to  supplement  a  petition  for  attachment  with  one  for  release.  If  the 
petition  for  release  be  considered  a  separate  petition,  the  period  al- 
lowed for  making  one  is  passed,  and  consequently  it  cannot  be  ac- 
cepted. As  to  the  request  for  attachment,  it  cannot  be  granted,  as 
there  are  no  provisions  in  the  Prize  Court  Regulations  from  which 
it  may  be  inferred  that  attachment  of  captured  goods  is  granted. 
Under  these  grounds  the  decision,  as  stated  in  the  text,  has  been  given. 


562  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Given  this  26th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Sasebo  Prize  Court  in  the  presence  of  the  Public  Procurator, 
C.  Minakami. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


VII.     Petition  in  Any  Language  Other  Than  Japanese. 

Case  I.     The  M.  S.  Dollar. 
Decision  published  in  the  Official  Gazette  of  March  23,  1905. 
Decision  of  the  Yokosuka  Prize  Court. 
The   following  decision   was   given   on  the   2nd   of   the   3rd   month 
of  the  38th  year  of  Meiji  by  the  Yokosuka  Prize   Court  in  the  case 
of  the  steamship  Dollar  and  her  cargo. 

No.  V. 

Decision. 
Petitioner — Robert   Dollar,    President  of  the  M.   S.  Dollar 
Steamship    Company,.  134   California    Street,   San   Fran- 
cisco, Cal.,  The  United  States  of  America. 

In  the  case  of  the  steamship  M.  S.  Dollar  and  her  cargo,  the  above- 
named  Robert  Dollar  has  filed  a  petition  in  English  under  date  of 
the  2nd  of  the  2nd  month  of  the  38th  year  of  Meiji,  and  the  follow- 
ing decision  has  been  given: 

This  petition  is  hereby  rejected. 

Ground  of  the  Decision. 

It  is  set  forth  in  Art.  XXVI.,  3,  of  the  Prize  Court  Regulations 
that,  in  Prize  Courts  and  the  Higher  Prize  Court,  the  Japanese  lan- 
guage shall  be  used;  and  no  exception  is  provided  for.  The  petition 
being  in  English  is  contrary  to  this  article  and  is  unlawful.  It  can- 
not, therefore,  be  accepted. 

The  petition  was  addressed  to  the  Sasebo  Prize  Court,  but  the 
case  of  the  steamship  M.  8.  Dollar  not  being  in  the  jurisdiction  of 
that  Court,  the  petition  was  sent  to  this  Court,  which  Court  has  de- 
cided the  case. 

Given  this  2nd  day  of  the  3rd  month  of  the  38th  year  of  Meiji,  at 
the  Yokosuka  Prize  Court,  after  hearing  the  opinion  of  the  Public 
Procurator  of  the  Court. 

(Signed)    The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 


CHAP.  I.,  SECT.  III.]    JAPANESE  PRINCIPLES  ON  PRIZE  CASES.  563 

Case  II.     The  Mukden. 
Decision  of  the  Sasebo  Prize  Court. 
The   following  decision   was  given   by  the   Sasebo   Prize   Court   on 
the  16th  of  the  6th  month  of  the  37th  year  of  Meiji  in  the  case  of 
the  cargo  of  the  Russian  steamship  Mukden. 

Petitioner — E.  C.  Bodenhaus,  German  merchant,  4,  Deshiina, 
Nagasaki. 

The  above-mentioned  Bodenhaus,  on  the  4th  of  the  6th  month,  filed 
a  protest  against  the  decision  given  by  this  Court  on  the  26th  of  the 
5th  month  of  the  37th  year  of  Meiji  in  the  case  of  the  cargo  of  the 
Russian  steamship  Mukden.  But  the  document  being  in  the  German 
language  and  not  being  signed  by  a  Counsellor  at  Law  of  the  Empire 
is  in  violation  of  3rd  clause  of  Art.  XXXIIL,  1,  of  the  Prize  Court 
Regulations.  Therefore  the  protest  is  hereby  dismissed  according  to 
clause  1  of  Art.  XXXIIL,  2. 

This  decision  was  given  on  the  16th  of  the  6th  month  of  the  37th 
year  of  Meiji  at  the  Sasebo  Prize  Court  after  hearing  the  opinion  of 
the  Public  Procurator,  S.  Yamamoto. 

VII.     Some  Other  Principles. 

Besides  the  above-mentioned  principles,  some  others  were 
adopted  by  the  proper  authorities  of  Japan. 

A.  On  the  3rd  of  Feb.,  1904,  it  was  resolved  that  all  prizes, 
except  men-of-war,  shall  be  adjudged  at  a  Prize  Court,  no  mat- 
ter whether  they  are  government  property  or  not.  (The 
Higher  Prize  Court.) 

B.  Framjee,  Sorabjee  &  Co.,  of  Shanghai,  sent  in  a  docu- 
ment requesting  repayment  of  $19.61,  the  price  of  certain  goods 
on  board  the  Hsiping,  which  was  captured,  but  the  document 
was  returned  on  the  16th  of  June,  1904,  on  the  ground  that  the 
Higher  Prize  Court  has  no  authority  to  accept  anything  except 
appeals  from  decisions  of  the  Sasebo  or  Yokosuka  Prize  Court. 
(Higher  Prize  Court.) 

C.  R.  Masujima,  advocate  of  the  appellant  Washily  Yulie- 
vitch  Ecgart(?),  requested  postponement  of  decision  on  the 
appeal  case  of  the  cargo  of  the  Fu-ping,  but  the  request  was 
•denied  on  the  16th  of  August,  1905, because  there  was  no  special 


564  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

reason  for  the  postponement.  The  same  day  another  request 
of  K.  Masujima  that  the  same  appellant  be  permitted  to  appear 
before  the  Court  and  be  examined  was  also  denied  on  the  ground 
that  the  Higher  Prize  Court  decides  by  documents  and  cannot 
allow  an  appellant  to  appear  before  the  Court.  (Higher  Prize 
Court.) 

D.  On  the  5th  of  March,  1904,  the  rule  governing  the 
procedure  of  the  Yokosuka  Prize  Court  was  decided.  On  that 
day  the  following  resolution  was  made: 

It  is  more  proper  to  construe  the  2nd  clause  of  Art.  XVII. 
of  the  Prize  Court  Kegulations  in  the  sense  that  a  foreign  peti- 
tioner who  has  appointed  a  counsellor  at  law  of  the  Empire  his 
advocate  may  appear  before  the  Court  on  the  day  of  trial  to- 
gether with  his  advocate. 

E.  Resolutions  of  the  27th  of  Feb.,  1904: 

The  Regulations  governing  Captures  at  Sea  have  no  power 
to  bind  a  Prize  Court,  but  the  Yokosuka  Prize  Court  shall  take 
them  as  a  standard  and  shall  give  decisions  so  as  not  to  con- 
flict with  the  spirit  of  the  regulations.  (The  Yokosuka  Prize 
Court.) 

F.  In  case  a  ship  owner  charters  his  vessel,  knowing  that 
she  will  be  employed  for  the  transportation  of  contraband  of 
war,  or  in  case  a  master  makes  a  voyage,  knowing  that  the 
cargo  is  contraband  of  war,  the  ship  shall  be  confiscated  to- 
gether with  the  cargo,  even  when  the  cargo  is  not  the  property 
of  the  owner  of  the  ship.  But  in  the  latter  case,  if  the  master 
is  not  delegated  with  ordinary  authority,  it  is  otherwise.  (The 
Yokosuka  Prize  Court.) 

G.  Resolution  of  the  20th  of  the  3rd  month  of  the  38th 
year: 

The  master  of  a  captured  vessel  has  the  power  to  represent 
the  owner  of  the  ship  or  the  consignor  of  the  cargo  before  a 
Prize  Court.     (The  Yokosuka  Prize  Court.) 

I.  Resolution  of  the  30th  of  the  10th  month  of  the  38th 
year : 

Request  for  temporary  release  of  a  captured  vessel  shall  not 


CHAP.  L,  SECT.  IV.]       PROCEDURE   OF   CASES.  565 

be  permitted,  even  if  the  owner  deposits  security  money.     (The 
Yokosuka  Prize  Court.) 


Sect.  IV.     Procedure  of  Cases  in  the  Japanese  Prize  Courts. 

To  show  how  Japanese  Prize  Courts  paid  attention  to  the 
treatment  of  passengers  and  crews  of  captured  vessels,  dealing 
with  captured  goods,  contraband  and  non-contraband,  and  giv- 
ing decisions  on  the  cases,  the  following  report  of  the  Sasebo 
Prize  Court  is  worthy  of  attention : 

I.     Reception  of  Cases. 

When  notice  is  received  that  a  captured  vessel  will  be  in 
port,  the  Councillor  in  charge  of  the  case  shall  request  the  Sa- 
sebo Naval  Station  to  order  the  Prize  Officer  and  the  master 
of  the  vessel  to  appear  immediately  before  the  Prize  Court  with 
the  ship's  papers. 

When  the  Prize  Officer  and  the  master  of  the  ship  appear  at 
the  Court  and  deposit  a  statement,  the  ship's  papers,  etc.,  the 
Councillor  in  charge  of  the  case  shall  unseal  the  documents  in 
their  presence  and  prepare  an  inventory  of  them.  • 

The  Councillor  in  charge  of  the  case,  after  finishing 
the  foregoing  business,  shall  proceed  to  the  captured  vessel 
and  inspect  the  vessel  and  cargo  in  the  presence  of  the 
master. 

When  the  inspection  of  the  vessel  and  cargo  is  finished,  the 
President  shall  entrust  the  care  of  the  vessel  and  cargo  to  the 
commander-in-chief  of  the  Sasebo  Naval  Station. 

Remarks.  In  the  third  clause  of  Article  XI.  of  the  Prize  Court 
Regulations  it  is  stated: 

"  After  the  preparation  of  the  inventory,  the  Councillor  shall  inspect 
the  captured  vessel  and  cargo,  and  shall  prepare  a  minute  inventory  of 
the  goods  in  the  presence  of  the  master  " ;  but  as  it  is  often  impossible 
to  inspect  the  goods  on  board,  unless  landed,  only  the  more  important 
particulars  of  the  visit  are  recorded  in  the  report  of  such  cases,  leaving 
the  minute  inspection  of  the  goods  and  preparation  of  the  inventory  to 
a  later  date. 


566  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

II.     Examination  of  the  Crew  and  Passengers. 

When  the  Councillor  in  charge  visits  the  captured  vessel,  he 
shall  examine  the  names  and  nationalities  of  the  crew,  com- 
paring them  with  the  muster  roll,  etc.,  and  enter  the  particu- 
lars in  his  report. 

When  there  are  passengers,  they  shall  be  examined  as  soon 
as  possible,  and  those  not  required  to  be  detained  shall  be  set  at 
liberty  immediately. 

The  data  to  be  procured  from  the  master  (and  other  mem- 
bers of  the  crew)  are  roughly  as  follows: 

Name,  age,  occupation,  place  of  birth,  and  present  resi- 
dence. 

Name  of  the  vessel,  her  nationality,  class,  owner  (or  char- 
terer), home  port,  and  tonnage;  the  date  and  place  of  launch- 
ing, her  flag,  and  commission. 

Years  and  months  in  service. 

Whether  there  are  passengers  or  any  military  men  aboard. 

The  facts  of  capture  and  detention,  and  steps  taken  by  the 
master  on  the  occasion. 

The  course  the  vessel  was  taking  at  the  time  of  capture, 
the  place  she  left,  the  place  whither  she  is  bound,  and  the  places 
at  which  she  has  called. 

Nature,  quantity,  ownership,  prices,  consignees  and  con- 
signors of  the  cargo,  the  place  where  it  was  taken  on  board  and 
where  it  is  to  be  landed. 

Whether  her  papers  are  perfect  or  not;  whether  they  are 
false,  altered,  thrown  away,  etc. 

Any  change  in  the  crew  and  cargo  before  or  after  the  cap- 
ture. 

Whether  the  present  war  had  been  expected  or  not. 

Remarks.  Of  the  crews  and  passengers  examined,  Sub-Lieutenant 
Shevelioff  (?),  of  the  Russian  Navy,  on  board  the  British  steamship 
Nigretia,  and  one  or  two  others,  refused  to  sign  the  record  of  the  ex- 
amination. Sub-Lieutenant  Shevelioff  wrote  a  statement  that,  though 
he  acknowledged  the  correctness  of  the  record,  he   could  not  sign  his 


CHAP.  I.,  SECT.  IV.]       PROCEDURE   OF   CASES.  567 

name  to   anything  written  in  the  Japanese  language,   and  signed  the 
statement. 

III.     Inspection  of  Goods. 

To  inspect  a  cargo,  the  list  shall  be  first  translated,  and 
one  copy  sent  to  the  Port  Admiral's  Office  and  another  copy 
to  the  Director  of  Finance.  Then  the  Councillor  in  charge 
and  a  clerk  of  the  Court,  together  with  members  of  the  Port 
Admiral's  Office,  shall  inspect  the  goods  on  the  vessel,  compar- 
ing them  with  the  list.  The  inspected  goods  are  then  taken  to 
the  quay  in  lighters,  where  they  are  delivered  by  the  members 
of  the  Port  Admiral's  Office  to  members  of  the  Director  of 
Finance,  who  take  them  to  the  storehouses. 

When  necessary,  the  personal  effects  of  the  crew  may  be 
inspected. 

When  the  inspection  is  finished,  the  Councillor  in  charge 
shall  prepare  an  inventory  of  the  goods. 

Remarks.  Goods  such  as  flour,  salt,  etc.,  which  are  in  bags,  are 
easily  damaged  by  taking  them  in  lighters  and  from  the  quay  to  the 
storehouses.  Damages  of  5  or  6  bags  in  every  100  cannot  be  avoided, 
even  when  handled  with  proper  care. 

Cargo  consisting  of  coal  alone  generally  does  not  need  to  be  in- 
spected; but  cargo  consisting  of  miscellaneous  goods  requires  minute 
inspection.  At  the  beginning  of  the  war,  when  several  captured  Rus- 
sian vessels  were  brought  to  port  simultaneously,  there  was  no  time 
to  inspect  their  cargoes,  and  they  were  inspected  later  on.  The 
cargoes  of  the  British  steamers  Hsiping  and  Pei-ping,  which  were 
captured  in  the  7th  month,  were  landed  and  inspected.  After  that 
time  cargoes  so  inspected  were  not  a  few.  The  time  required  for 
inspection  of  the  cargoes  of  some  of  the  captured  vessels  was  as  fol- 
lows : 

Bawtry  (1542  tons,  reg.) — 40  fair  days  (employing  10  lighters  and 
about  60  workmen). 

Aryol  (7662  tons,  reg.) — 20  fair  days  (same  as  above).  (Aryol 
being  a  hospital  ship  was  not  fully  laden.) 

Veteran   (820  tons,  reg.) — 14  fair  days   (same  as  above). 

Hsiping   (1266  tons,  reg.) — 12  fair  days   (same  as  above). 

Lydia   (447  tons,  reg.) — 8  fair  days    (same  as  above). 

Pei-ping   (326  tons,  reg.)— 4  fair  days   (same  as  above). 


568  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

In  the  British  steamship  Shishan,  there  were  on  the  upper  and 
middle  decks  several  hundred  cows  and  sheep  suffering  from  cattle 
plague,  and  in  the  hold  there  were  loaded  provisions.  Officers  of  the 
Nagasaki  Quarantine  Office  came  to  the  ship,  killed  the  infected  ani- 
mals, and  took  every  measure  to  prevent  further  infection.  The  Coun- 
cillor in  charge  inspected  the  goods  in  disinfected  clothes. 

Inspection  of  cargoes  is  one  of  the  most  troublesome  duties  of  a 
Prize  Court.  Tens  of  thousands  of  packages  must  be  examined,  com- 
paring them  with  the  lists.  In  the  case  of  iron  and  steel  wares, 
it  is  impossible  to  decide  whether  they  are  contraband  of  war  or  not, 
unless  the  packages  are  opened  and  the  goods  examined.  Goods  to 
be  released  must  also  be  examined  to  ascertain  that  they  do  not  differ 
from  the  descriptions  they  bear.  Moreover,  the  inspection  must  be  done 
promptly  and  only  a  reasonable  time  can  be  allowed  for  the  work. 
The  labour  of  the  Councillor  in  charge  and  the  clerk  is  immense. 

IV.  Inspection  of  Letters,  Landing  of  Crews  and  Passengers 
and  the  Reception  of  Visitors  by  the  Crews  and  Passengers. 

The  landing  of  the  crews  and  passengers  is  allowed,  so  long 
as  it  is  not  prejudicial  to  trials. 

Remark.  The  Court  construes  that  it  has  authority  to  inspect 
correspondence  from  the  necessity  of  conducting  trials. 

In  the  2nd  month  of  the  37th  year  of  Meiji,  while  the  Norwegian 
steamer  Helmes  was  being  tried,  the  representative  of  the  Norwegian 
Consul  at  Kobe  appeared  at  the  Sasebo  Prize  Court  and  demanded 
to  be  allowed  to  be  present  at  the  trial  and  other  examinations,  accord- 
ing to  Art.  XV.  of  the  treaty  between  Japan  and  Germany  concerning 
the  duties  of  consular  officers. 

But  the  treaty  not  being  applicable  to  the  trial  of  prizes,  which 
is  the  exercise  of  a  belligerent  right,  the  demand  was  refused.  The 
representative  was,  however,  permitted  to  see  the  master  at  the  Court. 

V.  Release  of  Crews  and  Passengers. 

When  there  is  no  need  of  detaining  the  crew,  etc.,  of  a 
captured  vessel,  the  Councillor  in  charge  of  the  case  having 
finished  his  examination  and  the  Public  Procurator  having  sub- 
mitted his  opinion  that  the  ship  and  cargo  should  be  confis- 
cated, the  Councillor  in  charge  of  the  case  shall  proceed  to 
the  vessel  and  hand  the  master  a  document  stating  that  the 


CHAP.  I.,  SECT.  IV.]      PROCEDURE   OF   CASES.  569 

examination  of  the  vessel  has  been  finished,  and  that  there  is 
no  need  of  the  crew  remaining  on  the  vessel,  telling  the  master 
also  the  reasons. 

When  there  are  passengers,  they  shall  be  ordered  to  leave 
the  vessel,  together  with  the  crew. 

The  master  and  other  members  of  the  crew  shall  be  per- 
mitted to  take  with  them  not  only  their  personal  property,  but 
also  telescopes,  chronometers,  and  other  articles,  if  they  declare 
and  explain  that  such  articles  are  their  private  property. 

When  the  crew  and  others  finish  their  preparations  for 
departure,  the  Naval  Station  shall  take  them  to  Nagasaki  in 
its  own  steamer  and  release  them  there. 

When  the  crew  and  others  depart,  the  Nagasaki  Customs 
shall  be  notified  that  the  crew  and  others  have  left  for  Naga- 
saki with  their  personal  property.  (This  notice  is  sent  by  the 
request  of  the  Nagasaki  Customs.) 

Remarks.  Up  to  the  12th  month  of  the  37th  year  of  Meiji,  notices 
to  release  crews  were  sent  by  the  President  to  the  Commander-in-Chief 
of  the  Naval  Station,  stating  that  there  was  no  need  of  detaining 
them,  and  the  Naval  Station  proceeded  to  release  them. 

But  on  the  3rd  of  the  1st  month  of  the  38th  year  of  Meiji,  at 
the  time  of  the  release  of  the  crew  of  the  British  steamer  Nigretia, 
when  an  officer  of  the  Station  proceeded  to  the  vessel  and  told  the 
crew  to  leave,  the  master  declared  that  he  would  not  leave  unless  he 
received  the  order  from  the  Prize  Court. 

Since  that  time,  by  the  request  of  the  Sasebo  Naval  Station,  the 
Councillor  in  charge  of  the  case  proceeds  to  the  vessel  and  makes  the 
notification   himself. 

VI.     Advertisement  of  Vessels  and  Cargoes. 

The  advertisements  referred  to  in  Art.  XVI.  shall  be 
made  in  the  Japan  Mail,  of  Yokohama,  the  Kobe  Herald,  and 
the  Nagasaki  Press. 

Remarks.  In  the  last  part  of  Art.  XVI.  of  the  Prize  Court  Regu- 
lations, it  is  stated,  "The  Court  shall  publish  an  advertisement  in  the 
Official  Gazette  and  in  two  foreign  newspapers  published  in  the  Empire." 
Therefore,  at  first,  advertisements  were  published  in  two  papers  only,  the 


570  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Japan  Mail  and  the  Nagasaki  Press.  But  it  is  more  proper  to  con- 
strue the  clause  as  an  order  to  advertise  in  two  papers  at  least,  and 
not  as  a  prohibition  to  advertise  in  more  than  two. 

Besides,  there  was  no  reason  to  except  Kobe  while  advertisements 
were  made  at  Yokohama  and  Nagasaki.  Thus  from  the  advertise- 
ment of  the  Hsiping  in  the  8th  month  of  the  37th  year  of  Meiji,  ad- 
vertisements were  made  in  the  above  three  papers.  Concerning  the 
form  of  advertisement,  sometimes  the  whole  list  of  goods  was  ad- 
vertised; sometimes  the  gist  only. 

VII.     Trial  and  Decision.1 

The  trial  of  the  Prize  Court  shall  not  be  open,  but  those 
who  are  deemed  fit  may  be  admitted. 

Concerning  the  recovery  of  damages,  freight  of  goods,  and 
other  expenses,  the  Prize  Court  shall  have  no  jurisdiction. 

Demands  for  temporary  attachment  of  vessels  and  cargoes 
shall  be  dismissed. 

Demands  for  ascertainment  of  bottomry  against  vessels  shall 
be  dismissed. 

Bottomry  attached  to  a  vessel  shall  not  be  acknowledged. 

Eequests  for  intervention  shall  not  be  accepted. 

In  case  an  advocate  is  appointed  by  telegram,  such  appoint- 
ment shall  not  be  valid  unless  the  telegram  is  replaced  by  a 
regular  document  within  a  period  designated  by  the  Court. 

A  petition  made  by  telegram  shall  be  dismissed. 

In  case  a  person  files  a  petition,  it  shall  not  be  dismissed 
but  an  oral  trial  shall  be  held,  even  if  it  can  be  inferred  from 
the  document  that  the  petitioner  is  not  an  interested  party. 

When  a  foreign  Consul  files  a  petition  on  the  ground  that 
he  is  a  guardian  of  the  interests  of  his  countrymen,  he  shall 
not  be  considered  an  interested  party  on  that  ground  alone. 

Concerning  cargo,  the  master  may  file  a  petition  as  an 
interested  party,  even  if  he  is  not  specially  delegated  by  the 
owner  to  do  so. 

The  shipping  agent  may  also  make  a  petition  regarding 
the  goods. 

1  Some  of  the  statements  in  this  subsection  are  repetitions  of  what  has  been  men- 
tioned in  a  former  chapter.  The  author  deems  the  facts  of  which  they  treat  worthy  of 
a  second  emposie. 


CHAP.  I.,  SECT.  IV.]       PROCEDURE   OF   CASES.  571 

The  Court  shall  summon  witnesses  and  assayers  only  when 
the  party  requesting  the  witnesses  and  assayers  defray  travel- 
ing and  other  expenses. 

In  case  it  becomes  clear  after  the  oral  trial  that  the  peti- 
tioner is  not  an  interested  party  in  regard  to  the  ship  or  cargo 
and  that  the  petition  ought  to  be  dismissed,  the  dismissal  shall 
be  stated,  for  convenience,  together  with  the  decision  for  the 
confiscation  of  the  ship  and  cargo. 

In  case  it  is  impossible  for  any  of  the  Councillors  who  took 
part  in  an  oral  trial  to  sign  the  decision,  the  President  shall 
state  in  the  decision  the  reason  for  the  absence  of  the  signa- 
ture of  such  Councillor. 

The  period  allowed  for  making  protest  shall  be  reckoned 
from  the  next  day  after  the  decision  is  pronounced. 

The  following  matters  shall  be  done  in  the  name  of  the 
President : 

Dismissal  of  a  petition  made  by  telegram. 

Permission  or  refusal  of  a  request  for  extension  of  the 
period  for  filing  a  petition,  or  any  other  periods. 

Dismissal  of  a  petition  that  does  not  conform  to  the  form, 
or  which  has  passed  the  prescribed  period. 

The  word  "form/'  employed  in  Art.  XXIII.,  2,  of  the 
Prize  Court  Regulations,  refers  to  the  conditions  mentioned 
in  Art.  XXIII.,  and  does  not  include  the  case  of  the  absence 
of  a  power  of  attorney. 

VIII.  Fees  and  Stamps. 

Procedure  in  prize  cases  do  not  require  fees  or  stamps. 

Remarks.  A  foreigner,  in  applying  for  a  copy  of  a  decision,  pro- 
posed to  pay  a  fee,  but  it  was  not  accepted. 

Not  only  petitions,  but  also  powers  of  attorney  (written  in  Japa- 
nese), requests  for  inspection  of  records,  etc.,  are  not  required  to  be 
stamped. 

IX.  Execution  of  Decisions. 

When  it  is  decided  that  a  vessel  or  cargo  is  to  be  released 
at  once,  the  Public  Procurator  shall  summon  the  master  to  the 


572  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Court,  hand  him  a  copy  or  abridgment  of  the  decision,  and 
explain  to  him  the  purport  of  the  decision. 

The  Public  Procurator  shall  then  prepare  a  report  of  the 
execution  of  release. 

When  a  decision  confiscating  a  vessel  or  cargo  becomes  con- 
clusive, the  Public  Procurator  shall  deliver  it  to  the  Com- 
mander-in-Chief of  the  Naval  Station. 

X.     Returning  Ships'  Papers. 

In  case  a  ship  and  cargo  are  released,  the  ship's  papers 
and  papers  regarding  its  cargo  shall  be  returned. 

In  case  of  the  confiscation  of  a  vessel,  when  the  master  or 
the  Consul  concerned  applies  for  the  ship's  papers,  those  not 
required  for  trial  may  be  restored. 


CHAPTER   II. 
ENEMY   VESSELS. 

Sect.  I.     Russian  Vessels.1 

It  was  Russia  who,  when  dealing  with  merchantmen,  did 
not  hesitate  to  sink  them — not  only  enemy  vessels,  but  even 
neutrals.  Japan,  however,  instead  of  sinking  merchantmen, 
captured,  with  the  exception  of  hostile  warships,  all  illegal  ves- 
sels, such  as  enemy  vessels,  contraband  carriers,  blockade  run- 
ners, etc.,  and  Japan  is  very  proud  of  the  following  cases  of 
Prize  Law: 

Case  I,  a.     The  Argun. 
Published  in  the  Official  Gazette,  Tokyo,  April  29,  1904. 
Decision  of  the  Saseoo  Prize  Court. 
The   following  decision    was  given    on   the   26th  of   the  5th   month 
of  the   37th  year  of  Meiji,  by  the  Sasebo  Prize  Court  in  the  case  of 
the  Russian  steamship  Argun. 

Petition  No.  I. 

Decision. 
Petitioner — The   Eastern    Chinese    Railroad    Company,    St. 

Petersburg,  Russia. 
Representative — Wentzel  (?),  Vice-President. 
Advocate — W.   Nagashima,   Counsellor   at  Law,   10,   Kaga 

Cho,  Kyobashi  Ku,  Tokyo. 
Advocate — N.   Hidaka,  Counsellor  at  Law,  10,  Kaga  Cho, 
Kyobashi  Ku,  Tokyo. 

In  the  case  of  the  Russian  steamship  Argun,  the  following  de- 
cision has  been  given: 

1  As  is  shown  in  the  table  in  Part  V.,  Chapter  I.,  there  were  several  cases  con- 
cerning enemy  vessels  as  well  as  neutral  vessels.  It  is  not  desired  to  describe  all  of 
them,  because  many  of  the  cases  were  very  similar  when  viewed  from  the  standpoint 
of  International  Law.  Only  the  typical  cases,  about  one-third  in  number,  are  taken  as 
illustrative. 

573 


574  NEW   CASES  ON   PRIZE   LAW.  [PART  V. 


Text  of  the  Decision. 

The  steamship  Argun  and  311  rubles  of  Russian  money  belonging 
to  her  are  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamship  Argun  is  the  property  of  the  Eastern  Chinese  Rail- 
road Company  of  Russia,  and  is  a  vessel  employed  for  the  transporta- 
tion of  passengers,  freight,  and  mail.  Her  usual  home  port  is  Dalny, 
China,  which  is  situated  in  the  district  leased  to  Russia.  The  ship 
left  Dalny  on  the  6th  of  the  2nd  month  of  the  37th  year  of  Meiji,  and 
on  her  way  to  Nagasaki,  Japan,  on  the  7th  of  the  same  month,  at 
about  4  p.m.,  she  was  captured  by  the  Japanese  man-of-war  Adzuma 
in  the  neighbourhood  of  Phal-ku-pho  on  the  southwestern  coast  of 
Korea.  The  ship  was  then  delivered  to  the  man-of-war  Tainan  Maru. 
The  311  rubles  of  Russian  money  were  on  board  the  ship  at  the  time 
of  capture. 

The  above  facts  are  admitted  by  the  advocate.  From  the  statement 
produced  by  Lieutenant  N.  Yoshimura,  I.J.N.,  representative  of  the  Cap- 
tain of  the  Tainan  Maru,  the  testimony  given  by  the  master  of  the 
ship,  Karl  Gertner,  and  the  first  mate,  Alexander  Schebinin,  the  certifi- 
cate of  the  ship's  nationality,  certificate  of  tonnage,  certificate  that  the 
ship  has  passed  examination,  her  log-book,  etc.,  makes  the  case  a  very 
clear  one. 

The  purport  of  the  plea  of  the  petitioner's  advocate  is  as  follows: 

( 1 )  It  is  a  rule  in  International  Law  that  the  state  of  war  be- 
gins with  the  opening  of  actual  hostilities.  The  ship  under  consider- 
ation was  captured  on  the  day  before  the  sea  fight  of  Port  Arthur, 
that  is,  before  the  opening  of  actual  hostilities.  She  ought,  therefore, 
to  be  released. 

(2)  The  steamship  under  consideration  is  a  merchantman,  and  is 
entitled  to  enjoy  the  privilege  given  by  the  Imperial  Ordinance  No. 
XX.  of  the  37th  year  of  Meiji. 

(3)  The  steamship  carried  mail  and  ought,  therefore,  to  be  re- 
leased, in  accordance  with  the  opinion  of  authorities  on  International 
Law. 

(4)  If  the  ship  is  to  be  released,  the  money  belonging  to  her  ought 
also  to  be  released. 

( 5 )  The  capture  was  made  in  Korean  territorial  waters ;  there- 
fore the  question  whether  Korea  was  neutral  or  not,  must  be  specially 
considered. 

Besides  the  above,  the  advocate  argues  that  the  ship  ought  to 
be  released,  as  the  people  of  the   enemy's   state  are  apprised  of  the 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  575 

commencement  of  war  by  declaration,  and  as  the  capture  took  place 
prior  to  such  declaration. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that  the  plea 
under  consideration  has  no  ground,  and  the  ship  and  the  money  be- 
longing to  her  ought  to  be  declared  lawful  prize. 

After  due  consideration  the  Court  concludes  as  follows: 

When  diplomatic  negotiations  concerning  the  Manchurian  and 
Korean  questions  were  going  on  between  Japan  and  Russia,  the  lat- 
ter country  unreasonably  failed  to  give  her  answer  to  Japan.  On  the 
other  hand,  she  showed  great  activity  in  her  army  and  navy,  sent  her 
land  forces  to  Manchuria  and  Korea,  collected  her  war  vessels  at  Port 
Arthur,  and  thus  showed  her  determination  to  fight.  This  fact  was 
clear. 

Whereupon  Japan,  on  the  5th  of  the  2nd  month  of  the  37th 
year  of  Meiji,  notified  Russia  that  all  diplomatic  relations  were  at 
an  end. 

At  the  same  time  Japan  made  preparations  for  action  and  the 
next  day,  the  6th  at  7  a.m.,  her  fleet  left  Sasebo  with  the  object  of 
attacking  the  Russian  fleet.  Inferring  from  the  conduct  of  the  navies 
of  both  countries  and  from  the  state  of  things  at  the  time,  that  hostile 
operations  were  publicly  opened  prior  to  the  capture  of  the  steam- 
ship now  under  consideration;  and  as  it  is  thus  clear  that  a  state 
of  war  had  begun  before  the  time  of  the  ship's  capture,  there  is  no 
need  to  discuss  whether  it  was  made  before  the  declaration  of  war 
or  not.  As  to  the  Imperial  Ordinance  No.  XX.,  it  took  effect  from 
the  day  of  its  promulgation,  that  is,  from  the  9th  of  the  2nd  month 
of  the  37th  year  of  Meiji,  and  is  therefore  not  applicable  to  a  case 
that  occurred  before  its  promulgation.  Moreover,  according  to  the 
articles  of  the  marine  transportation  department  of  the  Eastern 
Chinese  Railroad  Company,  to  which  the  ship  belongs,  all  the  vessels 
belonging  to  that  department  are,  in  time  of  war  or  emergency,  to 
be  furnished  for  use  by  the  Russian  Government,  and  her  army  and 
navy.  Thus,  if  she  be  released,  she  will  increase  the  enemy's  force. 
How  can  the  ordinance  which  gave  favour  to  harmless  merchant 
vessels  be  construed  as  applicable  to  such  kind  of  vessels  also?  In 
regard  to  the  enemy's  mail  ships,  it  is  recognised  in  International 
Law  that  they  are  liable  to  capture,  unless  there  be  a  special  agree- 
ment between  the  belligerents.  The  argument  of  the  advocate  is  noth- 
ing more  than  an  opinion  of  scholars  and  cannot  as  yet  be  adopted. 
Concerning  the  neutrality  of  Korea,  it  is  clear  that  she  was  not  de 
facto  neutral,  and,  consequently,  a  capture  made  in  her  territorial 
waters  cannot  be  said  to  be  unlawful.  In  a  word,  the  petition  has 
no  ground,  and  the  steamship  Argun  is  a  lawful  prize.     Consequently 


576 


NEW   CASES   ON   PRIZE   LAW. 


[PART  V. 


the  money  belonging  to  her  is  also  liable  to  confiscation.     Therefore, 

the  decision  as  stated  in  the  text  has  been  given. 

Given  this  25th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 

at  the  Sasebo  Prize  Court,  the  Public  Procurator,  S.  Yamamoto,  being 

present. 

(Signed)     The  President  and  Councillors  of  the 

Sasebo  Prize  Court. 

Case  I,  b.     Cargo  of  the  Argun. 
Published  in  the  Official  Gazette,  on  March  12,  1904. 
Decision  of  the  Sasebo  Prize  Court. 
Decision. 
In  the   case   of  the   Russian  merchantman   Argun  and   her   cargo, 
captured  by  the  Imperial  man-of-war  Adzuma  near  Phal-ku-pho,  south- 
western coast  of  Korea,  on  the  7th  day  of  the  2nd  month  of  the  37th 
'year  of  Meiji  at  about  4  p.m.,  the  decision  given  relative  to  the  goods 
mentioned   in  the   annexed  list,   after   examining  the   written   opinion 
of  the  Public  Procurator,  is  as  follows: 

The  goods  mentioned  in  the  annexed  list  were  taken  on  board  by  the 
Argun  at  Dalny,  Manchuria,  China,  on  the  6th  day  of  the  2nd  month 
of   the   37th   year   of   Meiji,    to   be   transported    to   Nagasaki,    Japan. 
From  the  freight  list,  nature  of  the  goods,  date  of  loading,  etc.,  it  is 
evident  that  they  were  the  property  of  persons  having  residence  in  the 
Empire,  and  as  there  is  no  circumstance  which  justifies  their  condemna- 
tion, they  were  released,  notwithstanding  that  the  capture  was  lawful. 
Given  this  24th  day  of  the  2nd  month  of  the  37th  year  of  Meiji. 
(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


List  of  the  Goods. 

Goods. 

Number 
of  Pack- 
ages. 

Consignor. 

Consignee. 

Furniture 

Soy 

Empty  casks 

Beer 

9 

45 

6 
4 
1 

1 

1 

3 

35 

Umeda 

Oishi 

Hirose 
it 

Nissei  Yoko 
r  Shipping  Agent  of  the 

1  East  China  R.R.  Co. 

<( 

ii 
u 

Kobayashi 

Oishi 

Tsutsui 

u 

Furniture 

Hats 

Nissei  Yoko 
r  Shipping  Agent  of  the 

I  East  China  R.  R.  Co. 

it 

tc 

Bed-clothes 

Clothing 

Soy 

a 

CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  577 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  March  29,  1905. 

The  following  decision  was  given  on  the  25th  of  the  4th  month  of 
the  38th  year  of  Meiji  by  the  Higher  Prize  Court  in  the  case  of 
the  Russian  steamship  Argun. 

Case  No.  XXIII. 

Decision. 

Petitioner — The    Eastern    Chinese    Railroad    Company,    St. 

Petersburg,  Russia. 
Representative — Wentzel  (?),  Vice-President. 
Advocate — W.   Nagashima,    Counsellor   at   Law,    10,   Kaga 

Cho,  Kyobashi  Ku,  Tokyo. 

A  protest  has  been  filed  by  W.  Nagashima,  Counsellor  at  Law,  advo- 
cate of  Wentzel,  Vice-President  and  representative  of  the  petitioner,  the 
Eastern  Chinese  Railroad  Company  of  St.  Petersburg,  Russia,  against 
the  decision  of  the  Sasebo  Prize  Court,  given  on  the  26th  of  the  5th 
month  of  the  37th  year  of  Meiji  in  the  case  of  the  Russian  steam- 
.ship  Argun,  belonging  to  the  Eastern  Chinese  Railroad  Company  of  St. 
Petersburg,  Russia,  which  ship  was  captured  by  the  Japanese  man- 
of-war  Adzuma  near  Phal-ku-pho,  on  the  southwestern  coast  of  Korea, 
on  the  7th  of  the  2nd  month  of  the  37th  year  of  Meiji.  The  original 
decision  condemned  the  ship  and  the  311  rubles  belonging  to  her.  The 
protest  has  been  tried  before  this  Court,  the  Public  Procurators,  K. 
Tsuzuki  and  B.  Ishiwatari,  taking  part. 

(Here  the  statement  is  omitted  to  avoid  repetition  of  the  original 
decision. ) 

The  decision  of  this  Court  is  explained  as  follows: 

In  (1)  of  the  protest  the  advocate  argues  that  the  state  of  war 
commences  with  the  opening  of  actual  hostilities,  and  as  hostilities 
actually  opened  between  Japan  and  Russia  on  the  8th  of  the  2nd 
month  of  the  37th  year  of  Meiji,  the  ship  ought  not  be  confiscated. 
But  the  commencement  of  the  state  of  war  does  not  necessarily  lie 
at  the  moment  when  two  armed  forces  open  fire  upon  each  other, 
but  rather  at  the  time  when  the  intention  of  making  war  is  made 
public,  that  is  to  say,  at  the  time  when  such  intention  is  carried  into 
effect,  or  when  by  a  declaration  of  war  or  otherwise  any  such  notifi- 
cation is  made.  And  as  the  intention  of  making  war  had  been  pub- 
licly announced  on  the  6th  of  the  2nd  month  of  the  37th  year  of 
Meiji,  before  the  battle  was  fought  at  Port  Arthur  on  the  8th,  the 
state  of  war  already  existed  on  the  7th;  and  the  argument  of  the 
advocate  that  the  war  commenced  on  the  8th  has  no  ground. 


578  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

In  (2)  of  the  protest  the  advocate  argues  that  the  ship  ought  to 
have  been  exempt  from  capture  under  Imperial  Ordinance  No.  XX. 
of  the  37th  year  of  Meiji;  and  that  the  original  decision  is  improper 
in  adjudging  the  capture  as  lawful,  on  the  ground  that  the  ordinance 
took  effect  from  the  9th  of  the  2nd  month,  the  date  of  its  promulga- 
tion, and  was  not  applicable  to  a  case  that  occurred  prior  to  that 
date;  and  on  the  further  ground  that  an  ordinance  which  is  applicable 
to  harmless  merchantmen  cannot  be  applied  to  vessels  such  as  the 
one  under  consideration,  which  belong  to  the  Eastern  Chinese  Rail- 
road Company,  and  which,  in  time  of  war  or  emergency  are  furnished 
for  use  by  the  Russian  Government's  Army  and  Navy. 

In  examining  the  nature  of  the  vessels  belonging  to  the  Eastern 
Chinese  Railroad  Company,  it  will  be  seen  that  the  managers  of  the 
Marine  Transportation  Department  of  the  same  company  are  naval 
and  other  government  officers.  One  of  the  managers  at  Vladivostock 
is  a  Lieutenant-Commander  in  the  Russian  Navy,  and  another  is  an 
official  of  the  Russian  Treasury  Department.  In  a  book  entitled 
"  River  Vessels  in  Russian  Asia,"  published  by  the  Russian  Depart- 
ment of  Communication  in  1902,  there  are  statistics  of  vessels  afloat 
in  the  basin  of  the  Amur  River.  Of  the  total  number  of  163  steam- 
ers and  196  sailing  vessels,  those  which  belong  to  the  Government 
are  put  down  as  45  steamers  and  66  sailing  vessels.  On  examining 
the  owners  of  these  vessels,  it  will  be  found  that  the  above  num- 
ber of  the  Government's  vessels  cannot  be  accounted  for  unless  the 
19  steamers  and  60  sailing  vessels  belonging  to  the  Eastern  Chinese- 
Railroad  Company  are  included  among  them.  In  the  Boxer  trouble- 
of  the  33rd  year  of  Meiji,  indemnity  for  the  damages  received  by  the 
Eastern  Railroad  Company  was  demanded,  not  as  damages  received 
by  Russian  subjects,  but  as  those  incurred  by  the  Russian  Govern- 
ment. *  Inferring  from  these  facts  that  vessels  belonging  to  the  Eastern 
Chinese  Railroad  Company,  such  as  the  ship  under  consideration,  must 
be  taken  as  official  vessels  belonging  to  the  Russian  Government.  Now 
the  Imperial  Ordinance  No.  XX.  may  seem,  on  first  sight,  to  be  ap- 
plicable to  all  Russian  merchantmen,  but  as  the  principal  object  of 
its  promulgation  was  to  exempt  from  the  hardship  of  capture  those 
Russian  merchant  vessels  of  private  ownership  which  could  not  know  of 
the  fact  of  the  commencement  of  hostilities  beforehand,  and  which  were 
in  Japanese  ports  or  were  en  route  for  them,  having  left  foreign  ports 
before  the  ordinance  took  effect,  there  is  no  doubt  that  Government 
vessels  such  as  the  one  under  consideration  are  not  entitled  to  the 
privilege  given  by  that  ordinance.  Therefore,  although  the  reason 
given  by  the  original  Pri?e  Court  that  the  ordinance  is  not  applicable 
to  cases  that  occurred  before  it  took  effect  may  be  improper,  as  the 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  579 

advocate  argues,  yet  the   protest   is  groundless   for   the   reason  given 
above. 

In  (3)  the  advocate  argues  that  at  the  time  of  her  capture  the 
ship  had  mails  on  board,  and  she  ought  to  be  released  in  accordance 
with  the  opinion  of  scholars  and  the  most  advanced  principles  of  Inter- 
national Law.  But  the  fact  of  an  enemy's  vessel  carrying  the  mails 
is  not  recognised  in  the  International  Law  now  in  force,  or  in  the 
laws  of  Japan,  as  a  ground  of  exemption  from  capture,  so  that  this 
point  of  the  protest  is  overruled. 

In  (5)  the  advocate  argues  that  the  ship  was  captured  in  the 
territorial  waters  of  Korea,  and  in  giving  a  decision  it  is  of  great 
importance  to  make  clear  whether  that  country  was  a  neutral  or  an 
ally;  and  he  regrets  that  the  original  Prize  Court  did  not  clearly 
explain  the  status  of  Korea.  But  in  the  Russo-Japanese  War,  not 
only  did  Korea  consent  from  the  first  to  the  landing  and  passage  of 
the  Japanese  Army,  but  in  the  earlier  part  of  the  war  battles  were 
fought  in  her  dominion.  Thus  she  cannot  be .  considered  as  a  neutral 
in  the  ordinary  sense  of  the  word,  and  consequently  the  protest  is 
overruled  on  that  point  also. 

In  (6)  the  advocate  argues  that  the  people  of  the  enemy's  state 
are  apprised  of  the  commencement  of  hostilities  by  the  declaration 
of  war,  and  as  the  capture  was  made  prior  to  such  declaration,  the 
ship  ought  not  to  be  condemned.  But  it  is  recognised  in  International 
Law  now  in  force,  that  when  once  hostilities  are  opened,  a  belligerent 
can  exercise  the  right  of  capture  upon  the  private  property  of  the  hos- 
tile subjects,  whether  they  are  apprised  of  the  commencement  of  war 
or  not.     The  protest  is  groundless  on  this  point  also. 

In  (4)  the  advocate  argues  that  in  case  the  ship  is  to  be  released, 
the  money  belonging  to  her  ought  to  share  the  fate  of  the  ship  and 
to  be  released  together  with  her.  But  since  the  capture  of  the  ship 
is  lawful  and  there  is  no  reason  to  release  her,  as  has  been  explained 
in  connection  with  several  grounds  of  the  protest,  there  is  also  no 
reason  to  release  the  money  belonging  to  the  ship  captured  with  her. 

The  decision  of  the  Court  is,  therefore,  as  follows: 

This  protest  is  hereby  rejected. 

Given  this  25th  of  the  4th  month  of  the  38th  year  of  Meiji  at  the 
Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 


580  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Case  II.     The  Bobrick. 
Published  in  the  Official  Gazette,  Tokyo,  on  May  18,  1904. 
Decision  of  the  Yokosuka  Prize  Court. 
The  following   decision  was  given  on   the    18th   of  the   5th  month 
of  the  37th  year  of  Meiji,  by  the  Yokosuka  Prize  Court  in  the  case 
of  the  Russian  sailing  vessel  Bobrick: 

Decision. 

In  the  case  of  the  Russian  sailing  vessel  Bobrick,  captured  at  Hako- 
date by  the  Japanese  man-of-war  Takao,  on  the  17th  of  the  2nd  month 
in  the  37th  year  of  Meiji,  examination  has  been  held  and  the  follow- 
ing decision  given: 

Text  of  the  Decision. 

The  sailing  vessel  Bobrick  is  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 

The  sailing  vessel  Bobrick  is  the  property  of  the  Kamtchatka  Mer- 
cantile and  Industrial  Company,  St.  Petersburg,  which  is  engaged  in 
fishing  and  hunting  in  Kamtchatka,  Russia.  The  vessel  registered  at 
Vladivostock,  has  a  license  to  fly  the  Russian  merchant  flag,  and  is 
principally  employed  in  transporting  fish  and  animals  caught  and  in 
carrying  stores  and  fishermen  to  the  fishing  grounds.  The  vessel  en- 
tered the  port  of  Hakodate  on  the  19th  of  the  10th  month  of  the  36th 
year  of  Meiji,  and  remained  there;  and  on  the  6th  of  the  2nd  month 
of  the  37th  year  of  Meiji  the  war  broke  out  between  Japan  and  Rus- 
sia. On  the  9th  of  the  same  month,  an  Imperial  Ordinance  was  prom- 
ulgated concerning  the  exemption  of  Russian  merchantmen  from 
capture,  and  the  Captain  of  the  Imperial  man-of-war  Takao  gave  an 
order  to  the  Bobrick  to  leave  Japanese  waters  within  the  days  of 
grace  prescribed  in  that  ordinance;  that  is,  not  later  than  the  16th 
of  the  2nd  month.  On  the  12th  of  the  2nd  month  a  report  was 
received  to  the  effect  that  part  of  the  Russian  fleet  was  coming  to 
attack  Hakodate,  and  at  11  a.m.  of  the  same  day,  the  Captain  of 
the  Takao,  as  a  measure  of  naval  exigency,  gave  orders  to  the  agent 
of  the  Bobrick  through  the  Hakodate  Water  Police,  forbidding  the 
vessel  to  leave  port  until  further  orders.  Before  long  the  necessity 
of  detaining  the  vessel  disappeared,  and  on  the  13th,  at  9  a.m.,  a  third 
order  was  given  through  the  Hakodate  Water  Police  cancelling  the 
second  order  by  which  the  vessel's  departure  was  prohibited,  and  per- 
mitting her  to  leave  port  not  later  than  the  16th.  When  the  first  order 
enjoining  the  vessel's  departure  before  the  16th  of  the  2nd  month  was 
received,  the  agent  of  the  Bobrick  telegraphed  to  Smith,  Baker  &  Co.,  of 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  581 

Yokohama,  enquiring  whether  a  crew  could  be  engaged  to  navigate  the 
vessel.  An  answer  was  received  in  the  affirmative,  but  then  the  ves- 
sel was,  for  the  time,  forbidden  to  depart,  and  the  agent  had  stopped 
negotiating  the  engagement  of  a  crew.  On  receiving  the  third  order 
on  the  13th  permitting  the  vessel  to  leave,  the  agent  petitioned  the  Cap- 
tain of  the  Takao  to  extend  the  days  of  grace,  but  this  was  refused. 
The  vessel  did  not  leave  Japanese  territorial  waters  within  the  days 
of  grace,  and  on  the  17th  of  the  2nd  month  at  9.30  a.m.,  the  Captain 
of  the  Takao  sent  J.  Tajima,  an  officer  of  the  ship,  to  capture  the 
Bobrick  in  accordance  with  the  provisions  of  the  Japanese  Regula- 
tions governing  Captures  at  Sea. 

The  above  facts  are  clear  from  the  reports  of  the  Captain  of  the 
Takao  and  of  J.  Tajima,  an  officer  of  the  same  ship,  from  the  testi- 
mony given  by  the  said  J.  Tajima  and  John  Andrew  Wilson,  proprietor 
of  Howell  &  Co.,  the  agent  of  the  Bobrick,  and  from  the  license  of 
navigation,  a  letter  from  the  Captain  of  the  Takao  addressed  to  the 
Councillor  in  charge  of  the  case  in  answer  to  enquiries,  and  a  letter  from 
the  before-mentioned  Wilson  addressed  to  the  Councillor  in  charge  of 
the  case,  etc. 

The  purport  of  the  petition  of  the  Kamtchatka  Mercantile  and  In- 
dustrial Company  is  as  follows: 

The  Bobrick  is  the  property  of  a  private  concern  established  with 
the  object  of  making  profits,  and  is  a  vessel  employed  for  purely  com- 
mercial purposes.  She  ought  not,  therefore,  to  be  captured.  It  is 
a  general  principle  of  International  Law  that  hostile  acts  should  be 
restricted  to  states,  and  individuals  should  not  be  aggrieved.  On  land, 
the  inviolability  of  private  property  is  a  fundamental  principle,  which 
has  exerted  influence  upon  the  rules  of  maritime  warfare,  and  the 
practice  of  capturing  an  enemy's  private  property  at  sea,  authorised 
from  old,  has  been  gradually  restricted.  Nor  is  this  tendency  shown 
alone  by  the  arguments  of  international  jurists,  for  the  principle  has 
been  adopted  by  great  Powers,  such  as  Germany,  Austria,  Italy,  and 
the  United  States.  In  a  word,  the  unreasonableness  and  inconven- 
ience of  captures  at  sea  is  universally  acknowledged,  and  the  abolition 
of  the  practice  is  the  desire  of  the  world.  The  petitioner,  therefore, 
prays  the  Court  to  release  this  sailing  vessel  in  accordance  with  jus- 
tice. Besides,  there  are  circumstances  in  the  capture  that  must  be 
taken  into  consideration.  The  vessel  was  treated  as  a  merchantman, 
and  on  the  9th  of  the  2nd  month  she  was  ordered,  according  to  Im- 
perial Ordinance  No.  XX.  of  the  37th  year  of  Meiji,  to  leave  Japanese 
waters  within  a  week.  Before  this  period  had  expired,  that  is,  on 
the  12th  of  the  2nd  month,  the  second  order  was  received  prohibiting 
temporarily  the  vessel's  departure.     The  negotiation  to  engage  a  crew, 


582  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

which  was  opened  at  Yokohama,  was  thus  stopped,  and  when  the  third 
order,  cancelling  the  prohibition  of  the  vessel's  departure,  was  re- 
ceived, there  were  only  three  days  left  for  the  vessel  to  depart.  It 
was  impossible  to  engage  a  crew  in  that  short  period,  and  a  petition 
was,  therefore,  presented  to  the  authorities  asking  for  an  extension 
of  the  days  of  grace.  The  petition  was,  however,  denied  and  the  ves- 
sel was  captured  on  the  expiration  of  the  days  of  grace  prescribed  in 
the  Imperial  Ordinance.  The  capture  was,  therefore,  improper,  and 
for  this  reason  also,  the  vessel  ought  to  be  released. 

After  due  consideration  the   Court   concludes   as   follows : 

The  inviolability  of  private  property,  mentioned  in  the  former  part 
of  the  petition,  is  recognised  in  modern  International  Law  as  regards 
land  warfare;  but  at  sea  the  principle  has  never  been  recognised  as 
a  rule,  nor  has  it  been  adopted  in  the  Japanese  Regulations  governing 
Captures  at  Sea.  Concerning  the  latter  part  of  the  petition,  the  Captain 
of  the  Takao,  from  strategical  necessity,  prohibited  temporarily  the  ves- 
sel's leaving  port  and  the  agent  stopped  negotiating  the  engagement  of  a 
crew.  There  was  sufficient  time  for  the  vessel  to  make  all  preparations 
and  leave  port  before  the  expiration  of  the  days  of  grace.  This  time  was 
not,  however,  utilised  and  the  vessel  was  at  last  captured.  The  act  of 
the  Captain  of  the  Takao  in  capturing  the  Bobrick  was  not  unlawful. 

Concerning  the  nature  of  the  vessel  there  is  some  contention,  the 
petitioner  saying  that  she  is  a  merchantman,  and  the  Public  Proc- 
urator saying  that  she  is  a  tender  of  open-sea  fishing  boats.  But 
as  the  vessel  was  captured  on  the  expiration  of  the  days  of  grace, 
there  is  no  need  to  determine  her  nature  in  this  decision. 

On  the  above  grounds  the  vessel  is  liable  to  condemnation,  and 
the  decision  as  stated  in  the  text  has  been  given. 

Given  this  18th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Yokosuka  Prize  Court,  S.  Uchida,  Public  Procurator  of  the 
Yokosuka  Prize  Court,  taking  part. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected  for 
the  same  reasons  held  by  the  Yokosuka  Prize  Court. 

Case  III.     The  Ekaterinoslav. 
Decision  published  in  the  Official  Gazette,  Tokyo,  on  June  7,  1905-. 

Decision  of  the  Sasebo  Prize  Court. 
The   following   decision  was   given   on  the   26th   of   the  5th   month 
of  the  37th  year  of  Meiji  by  the  Sasebo  Prize   Court  in  the  case  of 
the  Russian  steamship  Ekaterinoslav  and  cargo. 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  583 

Petition  No.  II. 

Decision. 
Petitioner — Russian  Volunteer  Fleet   Company,  St.   Peters- 
burg, Russia. 
Representative — Peeln  Foliff  (?),  Chairman  of  the  Board  of 

Managers. 
Advocate — R.  Masujima,  Counsellor  at  Law,  No.  14,  Yama- 
shita  Clio,  Yokohama. 

In  the  case  of  the  Russian  steamship  Ekaterinoslav  and  cargo,  the 
following  decision  has  been  given: 

Text  of  the  Decision. 
The  steamship  Ekaterinoslav  and  the  22  rifles,  5  pistols,  3  boxes 
of  ammunition,  1600  rubles  in  cash,  31  pieces  of  furniture,  4  articles 
of  clothing  and  bedding,  1  musical  instrument,  1  article  to  be  used 
in  a  factory,  1  piece  of  smith's  tool,  1  piece  of  fur  and  2  other  articles, 
1  cupboard,  2  pieces  of  silk  fabrics,  copper  cases  and  other  articles, 
in  all  156,  and  1  article  of  clothing,  are  hereby  confiscated. 

Facts  and  the  Grounds  of  Decision. 

The  steamship  Ekaterinoslav  is  the  property  of  the  Volunteer  Fleet 
Company  of  Russia,  flying  the  Russian  flag  and  with  Odessa  as  her 
usual  home  port.  On  the  4th  of  the  2nd  month  of  the  37th  year  of 
Meiji,  she  left  Vladivostock  for  Odessa  with  the  above-mentioned  goods 
on  board.  On  her  way  to  her  destination,  on  the  6th  of  the  same 
month  at  about  9  a.m.,  she  was  captured  by  the  Japanese  man-of-war 
Saiyen,  3  miles  north  of  Fusan,  Korea,  that  is,  in  N.  Lat.  35°  7'  and 
E.  Long.  129°    13\ 

The  above  facts  are  acknowledged  by  the  petitioner's  advocate, 
and  are  also  clear  from  the  statement  and  the  certificate  as  to  the 
money  and  valuables  on  board  the  prize  submitted  by  Lieutenant  N. 
Yoshimura,  I.J.N.,  representative  of  the  Captain  of  the  man-of-war 
Saiyen;  from  the  invoices,  certificate  of  the  ship's  nationality,  and 
log-book;  and  from  the  testimony  given  by  George  Selikky,  master, 
Vladimir  Paterimonovitch  Kisimoff,  first  mate,  and  Peodor  Luibakoff, 
second  mate,  of  the  Ekaterinoslav.  • 

The  purport  of  the  advocate's  plea   is   as   follows: 

I.  The  ship  under  consideration  had  never  been  fitted  out  for 
warlike  purposes,  had  never  engaged  in  the  transportation  of  con- 
traband of  war,  nor  had  she  any  such  goods  on  board.  She  ought, 
therefore,  to  be  exempt  from  capture  in  accordance  with  (3)  of  Art. 
XXIII.  of  the  Rules  of  Capture  at  Sea  resolved  upon  by  the  Institute 
of  International  Law  at  Turin  in  1882. 


584  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

II.  The  ship  was  captured  3  miles  off  the  Korean  coast.  Korea 
being  a  country  considered  by  Japan  as  an  independent  state  and  the 
place  of  capture  being  within  the  6  miles  now  generally  taken  as  the 
limit  of  territorial  waters,  the  capture  must  be  considered  as  having 
been  made  in  the  waters  of  a  neutral  country,  and  should  be  adjudged 
unlawful  in  accordance  with  the  amendments  resolved  upon  by  the 
Institute  of  International  Law  at  Paris  in  1895,  and  Arts.  VIII.  and 
IX.  of  the  aforesaid  Rules  of  Capture  at  Sea. 

III.  The  ship  was  on  her  way  from  Vladivostock  to  Colombo,  and 
was  first  apprised  of  the  outbreak  of  the  war  on  being  captured.  She 
ought,  therefore,  to  be  exempt  from  capture  in  accordance  with  Art. 
VI.  of  the  aforesaid  Rules  of  Capture  at  Sea. 

Moreover,  hostilities  are  restricted  to  belligerent  states,  and  their 
subjects  should  not  be  exposed  to  the  direct  influence  of  war  before 
its  declaration.  A  ship  and  cargo  such  as  those  under  consideration, 
which  were  captured  on  the  6th  of  the  2nd  month,  that  is,  before 
declaration  of  war,  should,  therefore,  be  released.  Furthermore,  as 
the  spirit  of  the  Imperial  Ordinance  No.  XX.  of  the  37th  year  of 
Meiji  was  to  exempt  from  capture  vessels  ignorant  of  the  opening 
of  the  war,  a  ship  such  as  this  one,  which  left  the  enemy's  territory 
without  any  knowledge  of  the  outbreak  of  hostilities  and  was  bound 
to  Colombo,  a  neutral  port,  should  not  be  captured. 

IV.  The  inviolability  of  private  property  at  sea  as  well  as  on  land 
is  advocated  by  modern  scholars  and  authorities.  It  was  resolved  upon 
by  the  Institute  of  International  Law  at  Turin  in  1882,  and  was  also 
submitted  to  the  International  Peace  Conference  of  The  Hague  in  1887. 
Thus  it  is  a  principle  recognised  as  well  by  states  as  by  private  per- 
sons. International  law  consisting,  besides  agreements  entered  into  by 
the  Powers,  of  principles  declared  by  jurists  and  by  the  Powers  as 
occasion  requires,  changes  with  the  progress  of  the  world  and  the 
times.  A  state  must,  therefore,  consider  the  condition  of  the  time 
and  the  general  opinions  of  jurists,  to  adopt  the  most  advanced  prin- 
ciples. The  22  rifles,  5  pistols,  and  3  boxes  of  cartridges  were  car- 
ried by  the  ship  for  her  own  defence,  as  is  the  case  with  any  steam- 
ship, and  it  is  very  clear  from  Art.  XXXII.  of  the  above-mentioned 
Rules  of  Capture  at  Sea  that  they  cannot  be  considered  as  contraband 
of  war.  The  advocate,  therefore,  requests  that  the  ship  with  her  whole 
cargo  be  released. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  as  follows: 
The    ship   under    consideration   is   an   enemy   vessel   captured   after 
the  outbreak  of  hostilities.     Moreover,  Korea  was  not  a  neutral  coun- 
try.    Consequently,  the  capture  was  lawful  and  the  ship  ought  to  be 
condemned.     As  to  the  cargo,  the  goods  such  as  furniture  and   cloth- 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  585 

ing,  which  must  be  considered  as  personal  property,  should  be  re- 
leased, and  all  the  others  be  condemned. 

After  due  consideration,  the  Court  concludes  as  follows: 

The  points  to  be  discussed  in  the  case  under  consideration  are, 
firstly,  whether  the  Rules  of  Capture  at  Sea  resolved  upon  by  the 
Institute  of  International  Law  at  Turin  in  1882,  the  amendments  re- 
solved upon  the  same  association  at  Paris  in  1895,  etc.,  are  to  be 
applied  to  the  case  or  not;  secondly,  whether  the  capture  under  con- 
sideration was  lawful  or  not;  and,  thirdly,  whether  the  ship  and  the 
whole  of  her  cargo  are  liable  to  condemnation  or  not. 

I.  As  to  the  first  point,  the  argument  of  the  advocate  that  In- 
ternational Law  consists,  besides  agreements  entered  into  by  the  prin- 
cipal Powers,  of  the  declarations  made  by  jurists  and  by  the  Powers 
as  occasion  requires,  is  true;  but  the  declaration  of  a  state  and  the 
resolution  of  jurists  cannot  be  said  at  once  to  become  the  rules  and 
precedents  of  International  Law  in  force.  The  Rules  of  Capture  at 
Sea  resolved  upon  by  the  Institute  of  International  Law  at  Turin  in 
1882,  the  proposals  of  the  International  Peace  Conference  of  1887  at 
The  Hague,  and  the  amendments  proposed  by  the  Institute  at  Paris  in 
1895,  cited  by  the  advocate,  are  nothing  more  than  the  desires  of 
jurists  or  an  expression  of  intention  by,  the  Powers  to  consider  the 
question.  They  cannot,  therefore,  be  applied  to  the  case  under  con- 
sideration, and  the  advocate's  plea  on  this   point   is   inadmissible. 

In  order  to  make  the  second  point  clear,  it  is  necessary  to  discuss 
whether  the  capture  was  made  before  or  after  the  opening  of  the  war. 
When  diplomatic  negotiations  were  opened  between  Japan  and  Russia 
concerning  the  Manchurian  and  Korean  questions,  the  latter  Power  un- 
reasonably delayed  giving  her  answer  to  Japan.  On  the  other  hand, 
she  landed  her  forces  in  Korea  and  collected  her  squadron  at  Port 
Arthur;  and  it  is  a  fact  that  Russia  had  shown  by  her  warlike  ac- 
tivities her  determination  to  open  hostilities  against  Japan.  Where- 
upon Japan,  on  the  5th  of  the  2nd  month  of  the  37th  year  of  Meiji, 
despatched  a  notice  to  Russia  that  all  diplomatic  relations  with  her 
were  at  an  end.  At  the  same  time  Japan  made  preparations  for  war 
and  the  next  day,  the  6th,  at  7  a.m.,  her  fleet  left  Sasebo  with  the 
object  of  attacking  the  Russian  fleet,  thus  inferring  from  the  conduct 
of  the  Japanese  and  the  Russian  fleets  and  the  state  of  things  at  the 
time,  that  hostilities  were  publicly  opened  before  the  capture  of  this 
ship,  and  it  is  clear  that  a  state  of  war  then  existed.  The  advocate 
argues  that  a  declaration  of  war  is  indispensable  for  the  information 
of  the  subjects  of  belligerent  states,  and  that  a  capture  before  such 
declaration  is  unlawful.  But  in  modern  International  Law  it  is  gen- 
erally  recognised   that   a   declaration   is   not   necessary  before   opening 


586  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

hostilities,  and  the  advocate's  argument  is  groundless  on  this  point. 
As  to  the  place  of  the  capture,  even  if  it  is  admitted  that  a  place  three 
miles  from  the  shore  is  within  territorial  waters,  it  cannot  be  said  to  be 
unlawful,  as  Korea  was  not  de  facto  a  neutral  state.  Again,  an  enemy 
vessel  is  liable  to  capture  whether  she  knew  of  the  opening  of  war  or 
not.  This  is  recognised  in  International  Law;  and  there  is  no  rea- 
son why  being  in  ignorance  of  the  outbreak  of  hostilities  on  the  part 
of  the  ship  should  make  the  capture  unlawful.  As  to  Imperial  Ordi- 
nance No.  XX.  of  the  37th  year  of  Meiji,  it  is  a  privilege  of  exemption 
granted  to  Russian  merchant  vessels  in  Japanese  ports,  or  to  those 
that  left  foreign  ports  for  Japan  before  the  10th  of  the  2nd  month. 
And  even  if  this  ship  were  bound  for  Colombo,  the  ordinance  cannot 
be  applied  to  her.     Thus  the  capture  was  lawful. 

As  to  the  third  point,  it  being  clear  from  the  above  facts  that 
the  ship  under  consideration  is  an  enemy  vessel,  the  22  rifles,  5  pis- 
tols, and  3  boxes  of  cartridges,  carried  for  her  own  defence,  and  the 
1600  rubles  in  cash  with  which  to  pay  the  crew,  partake  of  the  enemy 
character  and  are  confiscable  together  with  the  ship.  The  other  parts 
of  the  cargo  mentioned  in  the  text  being  goods  in  transit  from  Vladi- 
vostock  to  Odessa,  are  all  enemy  goods  and  also  liable  to  confiscation. 
Therefore  the  decision  as  stated  in  the  text  has  been  given. 

Given  this  26th  day  of  the  5th  month  of  the  37th  year  of  Meiji 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  C.  Minakami,  tak- 
ing part. 

(Signed)     The  President  and  Councillors  of  the 

Sasebo  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  June  7,  1905. 
The   following  decision   was  given   on  the   30th   of  the   5th  month 
of  the  38th  year  of  Meiji  by  the  Higher  Prize  Court  in  the  case  of 
the  Russian  steamship  Ekaterinoslav  and  her  cargo. 

Case  No.  XIX. 

Decision. 
Petitioner — Russian  Volunteer  Fleet  Company,   St.  Peters- 
burg, Russia. 
Representative — Peeln  Foliff  (?),  Chairman  of  the  Board  of 

Managers. 
Advocate — R.  Masujima,  Counsellor  at  Law,  No.  14,  Yama- 
shita  Cho,  Yokohama. 

A  protest  has  been  filed  by  R.  Masujima,  advocate  of  the  peti- 
tioner Peeln  Foliff,  Chairman  of  the  Board  of  Managers  of  the  Russian 


CHAP.  II.,  SECT.  I J  RUSSIAN   VESSELS.  587 

Volunteer  Fleet  Company,  against  the  decision  of  the  Sasebo  Prize 
Court  given  on  the  26th  of  the  5th  month  of  the  37th  year  of  Meiji 
in  the  case  of  the  steamship  Ekaterinoslav  of  the  Russian  Volunteer 
Fleet  Company  and  her  cargo,  captured  by  the  Japanese  man-of-war 
Saiyen  near  Fusan,  Korea,  on  the  6th  of  the  2nd  month  of  the  37th  t 
year  of  Meiji.  The  original  decision  condemned  the  ship  and  her 
cargo,  consisting  of  22  rifles,  5  pistols,  3  boxes  of  ammunition,  1600 
rubles  in  cash,  31  pieces  of  furniture,  4  articles  of  clothing  and  bed- 
ding, 1  musical  instrument,  1  article  to  be  used  in  a  factory,  1  piece 
of  fur,  1  smith's  tool  and  2  other  articles,  1  cabinet,  2  pieces  of  silk 
fabrics,  copper  cases  and  other  articles,  in  all  155,  and  1  article  of 
clothing.  The  protest  has  been  tried  before  this  Court,  the  Public 
Procurators,  K.  Tsuzuki  and  B.  Ishiwatari,  taking  part. 

The  purport  of  the  protest  of  R.  Masujima,  petitioner's  advocate, 
is  as  follows: 

I.  The  declaration  of  the  Powers  and  the  resolutions  of  scholars 
constitute  the  rules  and  usage  of  International  Law  now  in  force;  and 
the  Rules  of  Capture  at  Sea  resolved  upon  by  the  Institute  of  Interna- 
tional Law  at  Turin  in  1882,  the  proposals  of  the  International  Peace 
Conference  of  1887,  and  the  amendments  resolved  upon  by  the  Insti- 
tute of  International  Law  at  Paris  in  1885  ought  to  be  taken  as  the 
standard  of  such  rules  and  usages,  for  International  Law  is  not  a 
statute  law  and  has  no  legislator.  Its  sanction  and  the  power  to 
amend  it  rest  in  the  declaration  of  the  Powers  and  the  resolutions 
of  scholars.  When  a  state  makes  a  declaration  with  regard  to  a  cer- 
tain event,  that  becomes  a  rule  of  International  Law;  and  such  declara- 
tions change  with  the  progress  of  the  world  and  the  change  of  the 
times.  There  is  no  fixed  International  Law  for  a  state  to  observe,  but 
any  just  and  impartial  practice  adopted  by  it  according  to  circum- 
stances becomes  the  standard  of  International  Law.  In  applying  the 
rules  of  International  Law  at  the  time  of  war,  therefore,  a  state 
should  take  into  consideration  the  spirit  of  the  times  and  the  most 
advanced  theories  of  scholars,  basing  all  its  decisions  upon  the  great 
principle  of  universal  benevolence.  Unlike  a  court  of  law,  a  prize 
court  is  not  bound  by  any  rules.  It  should,  therefore,  take  as  its 
standard  the  most  advanced  principles  of  International  Law  and  should 
give  decisions  at  its  discretion  on  the  cases  brought  before  it.  It  is 
now  the  beginning  of  the  twentieth  century,  and  the  petitioner  has 
the  right,  the  advocate  believes,  to  demand  a  decision  based  upon 
the  most  advanced  principles  of  International  Law.  Thus  the  peti- 
tioner bases  his  plea  not  only  upon  the  theories  expounded  by  occi- 
dental scholars,  but  also  upon  new  arguments,  and  insists  that  even 
enemy    vessels   and    enemy    goods    should,   according   to   the   standard 


588  NEW   CASES   ON   PRIZE   LAW.   .  [PART  V. 

above  mentioned,  be  exempt  from  capture,  provided  that  they  are  not 
contraband  of  war,  nor  guilty  of  any  illegal  act  or  intention,  nor  im- 
mediately requisite  for  hostile  operations,  nor  a  hindrance  to  such 
operations.  According  to  the  modern  idea  of  International  Law,  a 
belligerent  visits  and  searches  enemy  vessels  in  order  to  safeguard 
his  own  interests,  and  captures  are  made  only  when  required  to  at- 
tain the  object.  They  are  not  retaliatory  acts.  Thus  even  the  enemy 
war  vessels  or  enemy  goods  may  not  be  captured  except  under  certain 
circumstances.  As  to  the  idea  of  vanquishing  the  enemy  by  destroy- 
ing his  shipping  and  commerce,  it  is  not  tenable  in  the  present  cen- 
tury when  communication,  transportation,  and  financial  organs  are  so 
highly  developed.  A  captured  enemy  vessel  should,  therefore,  be  in- 
stantly released  unless  she  has  committed  some  illegal  act.  The  ship 
under  consideration  was  not  guilty  of  carrying  contraband  nor  of  any 
other  illegal  act;  nor  is  there  any  reason  to  suspect  her  of  any  in- 
tention to  commit  such  acts  in  the  future.  She  was  only  engaged 
in  peaceful  commerce,  with  no  intention  of  assisting  hostile  opera- 
tions. She  should,  therefore,  be  released.  Moreover,  Japan  went  to 
war  for  the  cause  of  justice,  and  no  one  doubts  that  she  will  uphold 
it  to  the  end.  Thus  the  real  ideal  of  the  Imperial  Government  must 
be  the  liberal  treatment  of  even  the  enemy's  vessels  and  enemy  goods, 
considering  them  the  same  as  neutral  vessels  and  neutral  goods  so  long 
as  there  is  no  guilty  act  or  intention.  Again,  this  war  is  the  best 
opportunity  to  put  into  practice  those  enlightened  principles  of  Inter- 
national Law  that  have  been  advanced  in  the  last  few  decades,  and 
when  necessary,  to  establish  new  precedents.  The  reason  the  advocate 
considers  the  petitioner's  plea  to  be  well  grounded,  lies  in  the  fact  that 
International  Law  has  been  making  gradual  progress,  that  many  re- 
strictions have  been  made  concerning  the  right  of  capture,  and  that 
such  exceptions  tend  to  become  general  rules.  If  it  be  asked  what  is 
the  best  standard  to  adopt  for  the  case  under  consideration,  nothing 
could  be  better  than  the  above-mentioned  Rules  of  Capture  at  Sea  re- 
solved upon  by  the  Institute  of  International  Law  at  Turin.  Arts.  IV., 
V.,  VI.,  VIII.  to  X.,  XV.,  XXIII.,  XXXII.,  etc.,  of  the  same  rules  are 
especially  applicable  to  this  case;  and  the  advocate  believes  that  this 
Empire  will  not  hesitate  to  adopt  them,  as  they  are  the  public  opinion 
of  the  world. 

II.  According  to  the  advanced  principle  of  International  Law,  the 
private  property  of  the  enemy's  subjects  shall  not  be  confiscated  be- 
fore the  declaration  of  war,  or  if  the  owner  is  ignorant  of  the  ex- 
istence of  war,  even  though  hostilities  have  begun.  The  proposition 
that  a  declaration  is  not  required  before  commencing  hostilities  ap- 
plies  to  the   belligerent  states,    for  war  is    a   relation  between   states, 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  589 

and  the  people  that  constitute  the  state,  as  individuals,  have  nothing 
to  do  with  it.  Consequently  their  persons  and  property  must  be  pro- 
tected notwithstanding  the  war.  Moreover,  since  Korea  was  a  neutral 
country,  the  capture  of  this  ship  in  the  territorial  waters  of  Korea 
was  unlawful.  The  violation  or  intention  of  violating  the  rules  of 
war  determines,  under  International  Law,  whether  a  vessel  is  con- 
fiscable or  not.  Moreover  the  Ordinance  No.  XX.  of  the  37th  year 
of  Meiji  gives  protection  to  vessels  unacquainted  with  the  opening 
of  war;  this  ordinance  is  applicable  to  the  ship  under  consideration. 

III.  Suppose  the  ship  and  goods  under  consideration  are  the  ene- 
my's property.  They  were  captured  on  the  6th  of  the  2nd  month  of  the 
37th  year  of  Meiji,  and  Japan  opened  hostilities  against  Russia  on 
the  8th  of  the  2nd  month,  that  is,  on  the  day  of  the  naval  engage- 
ment outside  the  harbor  of  Chemulpo.  This  ship  left  Vladivostock 
on  the  4th  of  the  same  month  at  12.45  p.m.,  and  until  her  capture 
she  did  not  call  at  any  place.  Thus  she  was  ignorant  of  the  breach 
of  peace  between  Japan  and  Russia.  Moreover,  the  ship  is  a  mer- 
chantman engaged  in  maritime  commerce.  She  was  never  equipped 
for  warlike  purposes  or  employed  for  carrying  contraband.  She  was 
engaged  in  peaceful  commerce,  with  no  trace  of  having  committed 
offence.  According  to  modern  International  Law,  therefore,  the  ship  and 
cargo  are  not  confiscable,  even  though  they  may  not  be  exempt  from 
capture.  Especially  the  3  pieces  of  furniture  belonging  to  Mrs.  Condra- 
vitch,  as  stated  in  the  petition  and  supplement  to  the  petition,  are  all 
for  a  peaceful  purpose,  and  none  of  them  contraband  of  war,  they 
should,  therefore,  be  released.  The  original  decision  is  unlawful  in  con- 
demning the  ship  and  cargo  as  good  prize  notwithstanding  the  above 
reasons;  and  the  advocate  requests  that  it  be  overruled  and  a  new 
decision  be  given  releasing  the  ship  and  cargo. 

The  gist  of  the  answer  of  S.  Yamamoto,  Public  Procurator  of  the 
Sasebo  Prize   Court,  is  as  follows: 

The  protest  is  very  long  and  contains  many  arguments  which  have 
no  direct  bearing  upon  the  case.  The  gist  of  it  is  that  the  most 
advanced  standard  of  modern  International  Law  is  the  Rules  of  Cap- 
ture at  Sea  resolved  upon  by  the  Institute  of  International  Law  at 
Turin  in  1882;  that  the  advocate  requests  the  Court  to  establish  new 
precedents  by  adopting  the  above-mentioned  rules,  or  principles  even 
more  advanced;  and  that  the  original  judgment,  which  is  contrary 
to  the  above-mentioned  rules,  was  unlawful.  But  International  Law 
is  the  usage  recognised  generally  and  observed  reciprocally  by  the 
Powers.  Rules  that  are  nothing  more  than  resolutions  of  scholars 
unrecognised  by  the  Powers  cannot  at  once  be  adopted.  As  to  the 
other   grounds    of   the    protest    they    were    discussed    in    detail    in   the 


590  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

opinion  of  the  Public  Procurator  in  charge;  and  as  nothing  new 
has  been  produced,  the  Procurator  thinks  they  require  no  answer. 
Thus  the  original  decision  is  lawful  and  has  no  flaw ;  therefore  he  thinks 
that  the  protest  ought  to  be  rejected. 

After  due  consideration  the  Court  concludes  as  follows: 

I.  The  Rules  of  Capture  at  Sea  resolved  upon  by  the  Institute 
of  International  Law  at  Turin,  which  the  advocate  quotes,  are  noth- 
ing more  than  the  desire  of  scholars,  open  to  further  discussion  by 
the  Powers.  Under  International  Law  they  have  no  authority,  and 
it  is  a  mistake  to  try  to  judge  cases  of  capture  by  them.  A  prize 
court  has  to  decide  cases  brought  before  it  by  the  law  and  orders 
of  the  country  and  by  International  Law,  in  which  respect  it  dif- 
fers somewhat  from  a  law  court.  But  both  are  the  same  in  this, 
that  they  must  act  according  to  the  laws  and  orders.  As  to  the 
advocate's  vague  argument  for  governing  the  solid  business  of  the 
day  by  the  principle  of  universal  benevolence,  it  is  inadmissible.  It 
ignores  the  fact  that  war  is  indispensable  in  the  present  state  of 
national  intercourse,  and  tries  to  deny  the  right  of  capture  at  sea, 
which  is  one  of  the  rights  under  International  Law  enjoyed  by  bel- 
ligerent states.  In  time  of  war  enemy  vessels  and  enemy  goods  on 
board  are  liable  to  capture  irrespective  of  the  acts  or  intentions  of 
the  owner  or  the  crew.  This  is  the  rule  of  International  Law  and  it 
is  fair.    The  original  decision  which  applies  to  this  rule,  is,  therefore,  just. 

II.  During  the  Russo-Japanese  War,  not  only  did  Korea  consent 
to  the  landing  and  passage  of  the  Japanese  army  in  her  territory, 
but  at  the  beginning,  battles  were  fought  there.  It  follows  from  these 
facts  that  Korea  cannot  be  considered  as  a  neutral  in  the  common 
sense.  The  advocate's  protest  that  the  capture  was  in  neutral  wa- 
ters and  consequently  unlawful,  is,  therefore,  radically  wrong.  As 
to  the  Imperial  Ordinance  No.  XX.,  it  grants  special  immunities  to 
enemy  vessels  only  under  certain  circumstances,  and  its  application 
cannot,  of  course,  be  extended  beyond  the  scope  prescribed.  The  ship 
under  consideration  was  captured  on  the  Korean  seas  on  her  way 
from  Vladivostock  to  Odessa,  and  therefore  is  not  entitled  to  enjoy 
the  benefit  of  the  ordinance.  The  liability  of  capture  of  enemy  ves- 
sels, whether  they  are  aware  of  the  opening  of  war  or  not,  is  a  gen- 
erally accepted  principle  of  International  Law,  so  that  the  ignorance 
of  this  ship  of  the  outbreak  of  hostilities  between  Japan  and  Russia 
is  no  reason  to  exempt  her  from  capture.  As  to  the  principle  of  the 
inviolability  of  private  property,  it  is  generally  recognised  in  mod- 
ern International  Law  not  to  apply  to  capture  at  sea.  Thus  none 
of  the  advocate's  arguments  in  No.  II.  has  any  foundation. 

III.     The  state  of  war  does  not  necessarily  begin   at  the  moment 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  591 

when  the  two  opposing  armed  forces  open  fire  upon  each  other,  but 
rather  when  the  intention  of  making  war  is  made  public;  that  is 
to  say,  when  the  intention  is  carried  into  action,  or  when  a  declara- 
tion of  war  or  any  such  notification  is  made.  When  diplomatic  ne- 
gotiations were  going  on  between  Japan  and  Russia  concerning  the 
independence  and  territorial  integrity  of  China  and  Korea,  the  Rus- 
sian unreasonableness  put  an  amicable  settlement  beyond  hope.  And 
when  it  became  very  clear  that  Russia  intended  to  force  Japan  to 
submission  by  force  of  arms,  the  Japanese  Government  ordered  its 
diplomatic  agent  at  St.  Petersburg  on  the  5th  of  the  2nd  month  of 
the  37th  year  of  Meiji  to  notify  the  Russian  Government  that  diplo- 
matic relations  between  the  two  countries  were  at  an  end.  At  the 
same  time  the  Imperial  fleet  made  preparations  for  war  and  left  Sasebo 
the  next  day,  the  6th,  at  7  a.m.,  with  the  object  of  opening  hostilities. 
On  the  day  the  fleet  captured  the  ship  under  consideration,  which  was 
liable  to  naval  service  in  time  of  war.  This  (i.  e.,  the  sailing  of  the 
fleet)  was  nothing  more  than  putting  the  intention  into  action,  and 
the  Russo-Japanese  War  must  be  said  to  have  been  opened  from  that 
moment.  Thus  the  state  of  war  existed  on  the  6th  of  the  2nd  month 
of  the  37th  year  of  Meiji,  that  is,  the  day  on  which  the  Japanese  man- 
of-war  Saiyen  captured  the  ship  under  consideration.  If  so,  not  only 
was  the  capture  lawful,  but  the  ship  with  her  cargo  is  a  lawful  prize, 
as  has  been  explained  above.  The  original  decision  condemning  them 
is  proper.     The  decision  of  this  Court  is  therefore  as  follows: 

This  protest  is  hereby  rejected. 

Given  this  30th  day  of  the  5th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 


Case  IV.     The  Juriady. 
Decision  published  in  the  Official  Gazette,  on  June  24,  1904. 
Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  has  been  given  by  the  Sasebo  Prize   Court 
on  the  case   of  the  Russian  steamer  Juriady  on  the  26th  of  the  5th 
month  of  the  37th  year  of  Meiji. 
Petition  No.  I. 

Decision. 
Petitioner — Ginsburg,  Russian  subject. 

Advocate — S.  Sawada,  Counsellor  at  Law,  79,  Yamashita- 
cho,  Yokohama. 


592  NEW   CASES   ON   PRIZE   LAW.  [PART  V 

In  the  case  of  the  capture  of  the  Russian  steamship  Juriady,  the 
following  decision  has  been  given: 

Text  of  the  Decision. 

The  steamer  Juriady  is  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamer  under  consideration  is  the  property  of  a  Russian  sub- 
ject Ginsburg,  flying  the  Russian  merchant  flag,  and  was  used  as  a 
launch  at  Nagasaki.  The  owner  Ginsburg  is  a  contractor  for  the 
Russian  army  and  navy,  having  branch  offices  at  various  places  in  the 
East.  In  the  12th  month  of  the  36th  year  of  Meiji,  when  he  saw  that 
war  might  break  out  between  Japan  and  Russia  at  any  moment,  he 
withdrew  from  Nagasaki,  going  to  Dalny.  Since  that  time  the  vessel 
was  in  charge  of  Dow,  a  British  subject  and  manager  of  Ginsburg  &  Co. 
at  Nagasaki,  and  was  captured  in  the  port  of  Nagasaki  by  the  Im- 
perial man-of-war  Katsuragi  on  the  17th  of  the  2nd  month  of  the  37th 
of  Meiji,  at   11   a.m. 

The  above  facts  are  clear  from  the  statement  of  S.  Sakamoto,  Cap- 
tain of  the  Katsuragi;  the  account  and  certificate  of  capture  pro- 
duced by  Sub-Lieutenant  M.  Yoshii,  representing  the  Captain  of  the 
Katsuragi;  "the  (A)  class  certificate  of  examination  of  vessels";  the- 
answer  of  the  Police  Inspector,  M.  Yeguchi,  Chief  of  the  Umegasaki 
Police  Station,  Nagasaki  Ken;  and  the  testimonies  given  by  K.  Uotani, 
former  master  of  the  vessel,  and  by  Sub-Lieutenant  M.  Yoshii. 

The  gist  of  the  petitioner's  advocate's  plea  is  (1)  that  the  vessel 
was  used  by  Ginsburg  &  Co.  to  communicate  with  vessels,  Japanese 
or  foreign,  with  which  the  company  had  dealings,  or  to  embark  or 
disembark  passengers*  and  she  was  not  an  ocean-going  vessel;  (2)  that 
the  vessel  had  never  been  laden  with  contraband  of  war,  nor  ever 
been  guilty  of  any  hostile  act  against  Japan.  Therefore,  he  requests 
the  release  of  the  vessel. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that  there  is 
no  ground  for  the  reasoning  of  the  petitioner,  and  that,  therefore,  the 
vessel  should  be  condemned  as  lawful  prize. 

After  giving  due  consideration  to  the  case,  the  Court  concludes 
that  the  owner  of  the  vessel  is  a  Russian  subject  and  had  a  residence 
in  the  Empire  for  carrying  on  his  business.  But  as  he  withdrew  from 
the  Empire,  for  Dalny,  in  the  12th  month  of  the  36th  year  of  Meiji, 
foreseeing  the  outbreak  of  war  between  Japan  and  Russia,  he  is  an 
enemy  person  in  International  Law,  and  a  vessel  owned  by  him  is 
the  enemy's  property.  Especially  as  the  vessel  flew  the  Russian 
merchant  flag,  she  is  an  enemy  vessel  from  this  point  also.  And  as 
an   enemy  vessel  may   be   lawfully    captured   in   time  of   war   at   any 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  593" 

place  except  within  neutral  waters,  whether  such  vessel  is  a  harbor 
vessel  or  ocean-going,  whether  she  carries  contraband  of  war  or  not,, 
or  whether  she  is  guilty  of  a  hostile  act  or  not,  the  capture  of  the 
vessel  under  consideration,  after  the  commencement  of  the  state  of  war 
between  Japan  and  Russia  is  lawful,,  and  she  is  confiscable.  Therefore, 
the  decision  as  stated  in  the  text  has  been  given. 

Given  at  the  Sasebo  Prize  Court  this  26th  day  of  the  5th  month 
of  the  37th  year  of  Meiji,  in  the  presence  of  S.  Yamamoto,  Public 
Procurator  of  the  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Case  V.     The  Kotic. 
Published  in  the  Official  Gazette,  on  July  6,  1905. 
Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  18th  of  the  5th  month  of 
the  37th  year  of  Meiji,  by  the  Yokosuka  Prize  Court  in  the  case  of 
the  Russian  steamer  Kotic. 

No.  III. 

Decision. 
In  the  case  of  the  Russian  steamer  Kotic,  which  was  captured  at 
Yokohama  by  the  Japanese  man-of-war  Amaki  on  the  10th  of  the  2nd 
month  of  the  37th  year  of  Meiji,  a  trial  has  been  held  and  the  follow- 
ing decision  given: 

Text  of  the  Decision. 

The  steamer  Kotic  is  hereby  confiscated. 

Facts  and  the  Ground  for  the  Decision. 

The  steamer  Kotic  is  the  property  of  the  Kamtchatka  Commercial 
and  Industrial  Company,  St.  Petersburg,  Russia,  which  engages  in 
hunting  and  fishing  in  Kamtchatka,  Russia.  She  is  registered  at 
Vladivostock,  and  has  a  license  to  fly  the  Russian  flag,  and  also  is 
employed  by  the  company  to  transport  fish,  supplies,  and  fishermen. 
It  is  also  customary  for  her  to  act  for  the  Russian  Government  authori- 
ties and  to  keep  watch  over  vessels  engaging  in  illegal  fishing.  The 
vessel  had  been  staying  at  Yokohama  since  the  25th  of  the  12th 
month  of  the  36th  year  of  Meiji,  and  when  war  broke  out  between 
Japan  and  Russia  she  was  captured  in  the  same  port  by  the  Japanese 
man-of-war  Amaki,  on  the  10th  of  the  2nd  month  of  the  37th  year 
of  Meiji. 

The  above  facts  are  clear  from  testimony  given  by  Lieutenant  Y. 


-594  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Kamakura,  I.J.N.,  representative  of  the  Captain  of  the  Amaki;  Com- 
mander Y.  Minami,  I.J.N.,  formerly  Captain  of  the  Amaki;  H.  Yuasa, 
Chief  of  the  Yokohama  Water  Police  Station;  first  mate  Ufmann,  rep- 
resentative of  the  master  of  the  Kotic;  S.  Moji,  engineer  of  the  Kotic; 
T.  Kawakami,  second  secretary  of  legation;  G.  Kuraoka  and  S.  Fukai, 
tide-waiters  of  the  Custom  House;  S.  Shimidzu  and  T.  Saito,  from  the 
statement  submitted  by  Commander  Y.  Minami,  and  the  ship's  papers, 
and  the  statement  produced  by  the  above-mentioned  representative  of  the 
master  of  the  steamer,  the  copy  of  the  decision  of  the  Vladivostock  Dis- 
trict Court  given  in  the  case  of  the  sailing  vessel  Kiyomasa  Maru,  etc. 

The  purport  of  the  plea  of  the  petition  for  the  Kamtchatka  Com- 
mercial  and   Industrial   Company  is   as   follows: 

The  Kotic  is  a  vessel  employed  for  commercial  purposes,  and  in 
the  eye  of  the  law  she  is  a  merchantman.  She  had  the  liberty,  there- 
fore, to  leave  the  port  not  later  than  the  16th  of  the  2nd  month  of  the 
same  year.  Notwithstanding  this,  she  was  captured  before  the  days  of 
grace  had  expired.  The  capture  was,  therefore,  unlawful.  In  order 
to  decide  whether  the  capture  was  lawful  or  not,  it  is  necessary  to 
decide,  first,  whether  she  is  a  Russian  merchantman  or  a  Government 
vessel,  and,  if  she  was  not  a  Government  vessel,  then,  whether  she 
was  intrusted  by  the  Government  with  the  exercise  of  police  authority 
or  not.  Now,  in  order  to  constitute  a  Government  vessel,  two  things 
are  necessary.  First,  that  the  vessel  be  under  the  immediate  control 
of  the  Government;  that  is,  that  there  be  a  superintending  officer 
on  board.  Secondly,  that  she  is  employed  for  purposes  of  the  state, 
that  is,  for  the  exercise  of  Government  authority.  Were  it  admitted 
that  the  Kotic  had  exercised  the  police  authority  of  the  Russian  Gov- 
ernment, such  exercise  was  restricted,  as  is  seen  from  the  testimony 
given  by  S.  Moji,  to  the  time  when  there  was  a  superintending  officer 
on  board.  A  vessel  Cannot  be  said  to  be  a  Government  vessel  when 
there  is  no  superintending  officer  on  board,  even  if  she  were  once  so 
employed,  for  she  loses  her  official  character  when  she  ceases  to  be 
employed  in  that  capacity.  The  Kotic  was  captured  when  she  came 
to  Japan,  transporting  marine  products,  so  that  she  had  not  the  char- 
acteristic of  an  official  vessel.  Moreover,  the  police  authority  which 
the  vessel  is  said  to  have  exercised  was  not  exercised  by  the  master, 
as  a  deputy  of  the  Russian  Government,  but  she  was  hired  by  the 
Russian  officers  in  order  to  exercise  such  authority.  In  other  words, 
except  when  she  was  employed  in  the  exercise  of  police  authority  and 
hired  by  the  Russian  Government,  she  was  a  merchant  vessel  employed 
for  the  purposes  of  a  mercantile  company  which  owns  her.  She  should, 
therefore,  be  released. 

The  above  is  the  gist  of  the  petition.     But  the  steamer  Kotic  is 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  595 

a  fishing  vessel,  as  stated  above,  employed  for  the  transportation  of 
fish,  etc.  Moreover,  according  to  the  testimony  given  by  G.  Kuraoka 
and  T.  Kawakami,  the  vessel  may  be  considered  as  having  exercised 
part  of  the  Government's  authority,  even  when  there  was  no  official  on 
board.  Thus  the  testimony  of  S.  Moji  is  not  sufficiently  strong  to 
destroy  the  allegation  that  it  was  customary  for  her  to  exercise  a  part 
of  the  Government's  authority.  If  the  vessel  has  such  character  she 
cannot  be  said  to  be  a  merchantman,  even  if  she  were  captured  when 
she  came  to  Japan  transporting  marine  products  and  when  not  exer- 
cising any  Government  authority. 

On  the  above  grounds  the  vessel  does  not  come  under  the  head  of 
merchant  vessels  entitled  to  the  favour  of  Imperial  Ordinance  No. 
XX.  of  the  37th  year  of  Meiji,  and  the  action  of  the  Captain  of  the 
Amaki  in  capturing  her  was  lawful.  She  should  not,  therefore,  be 
released  and  the  decision,  as  stated  in  the  text,  has  been  given. 

Given  this  18th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Yokosuka  Prize  Court,  the  Public  Procurator,  Y.  Kobayashi, 
taking  part. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected 
for  the  same  reasons  held  by  the  Yokosuka  Prize  Court. 

Case  VI.     The  Lesnik. 
Decision  published  in  the  Official,  Gazette,  Tokyo,  of  July  5,  1904. 
Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  has  been  given  by  the   Sasebo  Prize   Court 
on  the  Russian  sailing  vessel  Lesnik  and  her  cargo  on  the  18th  of  the 
4th  month  of  the  37th  year  of  Meiji. 

Decision. 
In   the   case  of  the   capture   of  the   Russian   sailing  vessel   Lesnik 
and  her  cargo,  the  following  decision   is   given   according  to  the  last 
clause  of  Art.  XVI.  of  the  Imperial  Prize  Court  Regulations: 

Text  of  the  Decision. 
The  Russian  sailing  vessel  Lesnik  and  her  cargo,  consisting  of  salt, 
canvas  bags,  and  empty  casks,  are  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 
The   sailing  vessel   now  under  consideration  and  the   goods   aboard, 
consisting  of  salt  and  two  other  kinds  of  articles,  were  captured  in  the 
port  of  Nagasaki,  on  the  10th  of  the  2nd  month  of  the  37th  year  of 


596  NEW   CASES   ON   PRIZE   LAW.  [PART  V* 

Meiji,  by  Sub-Lieutenant  M.  Yoshii  according  to  the  order  of  S.  Saka- 
moto, Captain  of  the  man-of-war  Katsuragi.  At  that  time  the  existence 
of  the  state  of  war  between  Japan  and  Russia  was  very  clear. 

That  the  Lesnik  is  a  Russian  vessel  is  clear  from  the  certificate 
given  by  the  Russian  Consul,  then  at  Nagasaki.  That  the  vessel  is 
a  whaler  owned  by  Kaslin  (?),  otherwise  Count  Kazelling  (?),  a 
Russian  subject  residing  at  Vladivostock,  and  that  the  salt  and  two 
other  kinds  of  articles  aboard  are  the  property  of  the  said  Kaslin, 
to  be  used  in  the  manufacture  of  salted  whale,  etc.,  are  further  evi- 
dent from  the  record  of  the  testimony  given  by  the  Chinese  subject, 
Chen-Ming-Chiu,  who  has  charge  of  the  vessel,  which  proves  that  the 
vessel  is  an  enemy  vessel  and  the  salt  and  two  other  kinds  of  goods 
are  enemy  goods.  And  as  the  vessel  is  an  open-sea  fishing  vessel  and 
not  a  merchant  vessel,  she  is  not  entitled  to  enjoy  the  benefit  of  the 
"  exemption  of  merchantmen  from  capture,"  promulgated  by  the  Im- 
perial Ordinance  No.  XX.,  under  date  of  the  9th  of  the  2nd  month 
of  the  37th  year  of  Meiji.  The  capture  of  the  vessel,  therefore,  is 
lawful,  and  the  confiscation  of  the  vessel  and  the  goods  aboard  is  proper. 
Hence,  the  decision  as  stated  in  the  text  has  been  given. 

In  the  trial  of  this  case,  the  Public  Procurators,  Minakami  and 
S.  Yamamoto,  took  part. 

Given  this  18th  day  of  the  4th  month  of  the  37th  year  of  Meiji, 
at  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Case  VII.     The  Manchuria.1 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Feb.  18,  1905. 

Decision  of  the  Sasebo  Prize  Court. 
The   following  decision   was  given   on   the  26th   of   the  5th   month 
of  the  37th  year  of  Meiji  by  the  Sasebo  Prize  Court  in  the  case  of 
the  Russian  steamship  Manchuria. 

No.  XI. 

Decision. 

Petitioner — The  East  China  Railroad  Company,  St.  Peters- 
burg, Russia. 

Representative — Wentzel,  Vice-President. 

Advocate — W.  Nagashima,  Counsellor  at  Law,  10,  Kaga 
Cho,  Kyobashi  Ku,  Tokyo. 

Advocate — N.  Hikada,  Counsellor  at  Law. 

1  This  vessel  was  detained  at  Nagasaki.  There  was  another  Russian  vessel  named 
the  Manchuria  captured  off  Port  Arthur. 


€HAP.  II. ,  SECT.  I.]  RUSSIAN   VESSELS.  597 

In  the  case  of  the  Russian  steamship  Manchuria,  the  decision  given 
is  as  follows: 

Text  of  the  Decision. 

The  steamship  Manchuria  and  certain  liquors  and  provisions  be- 
longing to  her  are  hereby  confiscated. 

Facts  and  Ground  for  the  Decision. 

The  steamship  Manchuria  is  the  property  of  the  East  China  Rail- 
road Company  of  Russia,  and,  on  the  17th  of  the  2nd  month  of  the  37th 
year  of  Meiji,  while  she  was  under  repair  at  the  Mitsubushi  Dockyard 
of  Nagasaki,  lying  at  the  buoy  off  the  dockyard,  she  was  captured  by 
the  Japanese  man-of-war  Katsuragi.  The  liquors  and  provisions  were 
found  on  board  at  the  time  of  capture. 

The  above  facts  are  clear  from  the  statement  submitted  by  Lieu- 
tenant H.  Yokoo,  I.  J.  N.,  representative  of  the  captain  of  the  man- 
of-war  Katsuragi;  from  the  testimony  given  by  the  same  officer  and 
by  the  caretaker  of  the  Manchuria,  Walker,  an  Englishman;  from  the 
certificate  of  nationality  given  by  the  Russian  Consul  then  residing 
at  Nagasaki;  from  the  copy  of  the  order  for  repairs;  the  statement  of 
the  advocate,  etc. 

The  gist  of  the  plea  of  the  petitioner's  advocate  is  that  under 
International  Law,  an  enemy's  merchant  vessel  can  be  captured  by 
the  belligerent  only  in  his  territorial  waters  or  those  of  the  allied 
Power,  or  on  the  high  seas.  The  steamship  Manchuria  was  in  the  dock 
of  the  Mitsubishi  Dockyard  at  the  time  of  her  capture,  and  conse- 
quently the  capture  was  not  lawful.  Even  if  it  was  conceded  that 
she  was  not  then  in  the  dock,  she  ought  not  to  be  captured,  as  she 
was  still  in  the  hands  of  Japanese  subjects.  Moreover,  Imperial  Ordi- 
nance No.  XX.,  of  the  37th  year  of  Meiji,  which  permitted  Russian 
merchant  vessels  lying  in  the  territorial  waters  of  Japan  at  the  time 
of  the  ordinance's  taking  effect  to  depart  not  later  than  the  16th  of  the 
2nd  month  the  same  year,  was  meant  for  vessels  that  had  power  of 
navigation;  and  any  vessels,  such  as  the  ship  now  under  considera- 
tion, which  had  no  crew  at  the  time  of  the  promulgation  of  the  ordi- 
nance, her  hull  itself  being  under  repair,  and  which  was  utterly 
destitute  of  the  power  of  navigation,  should  not  be  captured  merely 
because  the  days  of  grace  had  expired.  The  petitioner,  therefore,  re- 
quests that  the  ship  and  the  liquors  and  provisions  may  be  released. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that  the  pe- 
tition now  under  consideration  has  no  ground,  and  that  the  ship  and 
liquors  and  provisions  should  be  confiscated. 

After  due  consideration,  the  Court  concludes  that  although  the 
advocate  argues  that  the  ship  was  captured  in  the  dock,  the  fact  men- 


598  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

tioned  above  clearly  proves  that  such  was  not  the  case.  The  advocate 
again  argues  that  at  the  time  the  ship  was  in  the  possession  of  Japa- 
nese subjects,  so  that  she  was  not  liable  to  capture.  But  the  question 
who  had  possession  of  a  vessel  when  she  was  captured,  has  nothing 
to  do  with  the  validity  of  the  capture.  The  advocate  argues  further- 
more that  the  ship  had  no  power  of  navigation  and  therefore  she 
ought  not  be  captured  merely  on  the  ground  that  the  days  of  grace 
had  expired.  But  the  right  of  capture  of  enemy  vessels  is  a  gen- 
eral principle  of  International  Law,  and  (the)  Ordinance  No.  XX.,  of 
the  37th  year  of  Meiji,  is  an  exceptional  rule.  The  capture  of  any 
vessel  that  does  not  fulfil  the  conditions  sets  forth  in  the  ordinance, 
is,  therefore,  lawful,  whether  she  has  power  of  navigation  or  not. 
In  a  word,  the  steamship  Manchuria  was  (the)  enemy's  vessel,  the 
place,  date,  and  procedure  of  her  capture  were  all  proper,  and  the 
Court  does  not  see  any  reason  to  release  her.  The  liquors  and  provi- 
sions belong  to  the  ship  and  must  be  considered  as  the  property  of 
the  owner  of  the  ship.  So  that  these  too  are  forfeitable.  Therefore, 
the   decision  as   mentioned  in   the   text   has  been  given. 

Given  this  26th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  in  the  presence  of  the  Public  Procurator, 
Y.  Hayashi. 

(Signed)     The   President   and   Councillors  of  the 
Sasebo  Prize  Court. 

Appeal  was  carried  to  the  Higher  Prize  Court,  but  rejected 
for  the  same  reasons  held  by  the  Sasebo  Prize  Court. 

Case  VIII.     The  Mukden. 

Decision  published  in  the  Official  Gazette,  Tokyo,  of  July  15,  1905. 

Decision  of  the  Sasebo  Prize  Court. 

The  following  decision  was  given  on  the  26th  of  the  5th  month 
of  the  37th  year  of  Meiji,  by  the  Sasebo  Prize  Court  in  the  case  of 
the  Russian  steamship  Mukden  and  her  cargo. 

Decision. 
Petition  No.  XIV. 

Petitioner — The  Eastern  Chinese  Railway  Company. 

Representative — Wentzel,  Vice  President. 

Advocate — W.   Nagashima,   Counsellor  at  Law,    10,  Kaga- 

cho,  Kyobashi  Ku,  Tokyo. 
Advocate — N.   Hidaka,   Counsellor   at  Law,    10,   Kagacho, 
Kyobashi  Ku,  Tokyo. 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  599' 

In  the  case  of  the  Russian  steamship  Mukden  and  her  cargo,  the 
following  decision  has  been  given : 

Text  of  the  Decision. 

The  Russian  steamship  Mukden  and  the  goods  No.  1  to  No.  45,1 
No.  47  to  No.  52,  and  No.  54  to  No.  56,  as  mentioned  in  the  annexed 
list,  are  hereby  confiscated;  and  the  goods  No.  46  and  No.  53  are 
released.2 

Facts  and  the  Grounds  of  the  Decision. 

The  steamship  Mukden  is  the  property  of  the  Eastern  Chinese  Rail- 
way Company  of  Russia,  with  her  home  port  at  Dalny,  China,  in 
the  district  leased  to  Russia.  She  flies  the  Russian  flag  and  is  en- 
gaged in  the  transportation  of  passengers,  goods,  and  mail  between 
Shanghai,  China,  Fusan,  Korea,  Nagasaki,  Japan,  and  Vladivostock, 
Russia.  On  the  5th  of  the  2nd  month  of  the  37th  year  of  Meiji,  she 
left  Nagasaki  for  Vladivostock,  and  on  the  way  she  called  at  Fusan 
where  she  was  captured  by  the  Japanese  man-of-war  Heiyen  on  the 
6th  of  the  same  month  at  2.45  p.m.  The  goods  on  board,  as  mentioned 
in  the  annexed  list,  are  all  deliverable  to  residents  of  Vladivostock, 
one  box  of  paper  for  record  books  and  one  bundle  of  flags  being  destined 
to  the  French  Commercial  Agent  at  the  same  port. 

The  above  facts  are  acknowledged  by  the  petitioner's  advocates  and 
are  further  clear  from  the  statement  submitted  by  Lieutenant  N. 
Yoshimura,  I.  J.  N.,  representative  of  the  captain  of  the  Heiyen-, 
from  the  testimony  given  by  Serge  Wisnyof ski  (  ? )  and  Alexander  Ivan- 
ovitch  Kanack  (?),  1st  and  2nd  mates  of  the  Mukden;  from  the  log- 
book, freight  list,  clearance  from  Nagasaki,  certificate  of  the  Nagasaki 
Quarantine  Office;  the  statement  of  G.  Gouderau,  French  Acting  Vice 
Consul  at  Nagasaki,  mentioned  in  the  record  of  the  oral  trials  in  con- 
nection with  the  petitions  Nos.  VI.   and  XII. 

The  purport  of  the  plea  of  the  petitioner's  advocates  is  as  follows: 

( 1 )  The  opening  of  the  Russo-Japanese  War  was  on  the  8th  of 
the  2nd  month  of  the  37th  year  of  Meiji,  when  the  naval  engagement 
of  Port  Arthur  was  fought,  and  not  at  the  time  when  the  Japanese 
Government  notified  the  Russian  Government  of  the  breach  of  all  diplo- 
matic relations.  The  capture  of  the  ship  under  consideration  took 
plac2,  therefore,  before  the  existence  of  the  state  of  war  between  the 
two  countries,  and  consequently  she  should  be  released. 

(2)  Were  it  admitted  that  the  state  of  war  commenced  with  the 
notification  of  the  breach  of  diplomatic  relations,  even  then  the  cap- 
ture was  made  before  the  existence  of  the  state  of  war,  and  the  ship 

1  Those  confiscated  are  money,  boxes  of  typewriters,  dried  fruit,  zinc  plates,  etc. 

2  Those  released  are  No.  46,  paper  for  books,  and  No.  53,  one  bundle  of  flags. 


600  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

should  be  released;  because  Minister  Kurino  delivered  the  notification 
to  the  Russian  Foreign  Minister  on  the  6th  of  the  2nd  month  of  the 
37th  year  of  Meiji,  at  4  p.m.,  and  the  capture  took  place  on  the  same 
day  at  2.45  p.m.    (omitting  difference  of  longitude). 

(3)  Under  the  Declaration  of  Paris  of  1856,  neutral  goods  are 
not  liable  to  capture.  The  goods  mentioned  in  the  advertisement  of 
the  Official  Gazette  under  the  To-A  Kwaisha  (the  East  Asia  Company), 
are  the  property  of  Marceron  Schreter,  residing  at  Vladivostock,  so 
that  they  should  be  released. 

(4)  If  the  ship  should  be  released,  the  cargo  should  also  be  re- 
leased. 

(5)  The  capture  was  made  in  the  territorial  waters  of  Korea;  and 
whether  Korea  is  to  be  considered  neutral  or  not,  requires  a  special 
explanation. 

Moreover,  the  people  of  the  enemy's  state  are  apprised  of  the  open- 
ing of  war  by  a  declaration,  and  the  ship  under  consideration,  which 
was  captured  before  the  declaration,  should  be  released. 

Furthermore,  Imperial  Ordinance  No.  XX.  of  the  37th  year  of  Meiji 
is  applicable  to  vessels  at  sea,  having  left  a  Japanese  port  before  the 
commencement  of  the  war,  and  the  ship  should  be  released  in  ac- 
cordance with  the  ordinance. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  as  follows : 
One  box  of  paper  for  record  books    (official  paper)    and  one  box  of 
flags,  belonging  to  the  French  Commercial  Agent,  should  be  released, 
but  the  ship  and  all  the  other  cargo  should  be  confiscated,   as  there 
is  no  ground  to  the  petitioner's  plea. 

After  due  consideration,  the  Court  concludes  as  follows: 
When  diplomatic  negotiations  concerning  the  Manchurian  and 
Korean  questions  were  going  on  between  Japan  and  Russia,  the  latter 
•country  unnecessarily  delayed  to  give  an  answer  to  Japan.  On  the 
other  hand,  she  showed  great  activity  in  her  army  and  navy,  sent 
her  land  forces  to  Manchuria  and  Korea,  collected  her  war  vessels 
at  Port  Arthur,  and  thus  showed  her  determination  to  fight  Japan. 
This  was  a  conspicuous  fact.  Whereupon,  Japan,  on  the  5th  of  the  2nd 
month  of  the  37th  year  of  Meiji,  despatched  a  notification  to  Russia, 
that  all  diplomatic  relations  were  at  an  end.  At  the  same  time  she 
made  preparations  for  action,  and  the  next  day,  the  6th,  at  7  a.m., 
her  fleet  left  Sasebo  with  the  object  of  attacking  the  Russian  fleet. 
Judging  from  the  conduct  of  the  navies  of  both  countries  and  from 
the  state  of  things  at  that  time,  hostile  operations  were  publicly  opened 
prior  to  the  capture  of  the  ship  under  consideration.  And  as  it  is 
thus  clear  that  the  state  of  war  had  begun  before  the  time  of  the 
ship's   capture,  there  is  no  need  to  discuss  whether  it  was  made  be- 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  601 

fore  or  after  the  declaration  of  war.  As  to  Imperial  Ordinance  No. 
XX.  of  the  37th  year  of  Meiji,  it  is  a  special  provision  exempting  from 
capture  Russian  merchant  vessels  that  were  in  Japanese  ports  on  the 
9th  of  the  2nd  month  or  had  left  foreign  ports  for  Japan  before  that 
date;  and  consequently  it  cannot  be  applied  to  a  Russian  ship  that 
had  left  a  Japanese  port  before  that  date  and  was  on  her  way  to  the 
enemy's  country.  Concerning  Korea,  it  is  clear  that  she  is  not  de  facto 
neutral,  and  consequently  any  capture  made  in  her  territorial  waters 
cannot  be  said  to  be  unlawful.  Thus  the  capture  under  consideration 
was  lawful,  and  the  ship  is  confiscable.  As  to  the  cargo,  1  box  of 
paper  (official  paper)  and  1  box  of  flags  belonging  to  the  French  Com- 
mercial Agent  at  Vladivostock,  who  resides  in  the  Russian  territory 
in  order  to  carry  out  the  orders  of  his  country,  should  be  released. 
The  other  parts  of  the  cargo,  being  all  enemy  goods  in  an  enemy  ves- 
sel, are  liable  to  confiscation.  The  petitioner's  advocates  plead  that 
the  goods  mentioned  in  the  advertisement  in  the  Official  Gazette  under 
the  East  Asia  Company  are  not  the  enemy  goods,  being  the  property 
of  the  Marceron  Schreter  Company,  a  French  firm  at  Vladivostock, 
and  consequently  neutral.  But  the  national  character  of  goods  is  de- 
termined by  the  residence  of  the  owner,  not  by  his  nationality.  The 
Marceron  Schreter  Company  may  be  of  French  nationality,  but  since 
it  has  its  office  at  Vladivostock,  Russia,  and  carries  on  business  there, 
its  property  is  the  enemy's  property  and  is  liable  to  confiscation. 
The  decision  as  mentioned  in  the  text  has,  therefore,  been  given. 

Given  this  26th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  C.  Mina  Kamu,. 
taking  part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  July  15,  1905. 
The  following  decision  was  given  on  the  3rd  of  the  7th  month  of 
the  38th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  case  of  the: 
Russian  steamship  Mukden  and  cargo. 
Case  No.  IV. 

Decision. 

Petitioner — The  Eastern  Chinese  Railway  Co.,  St.  Peters- 
burg, Russia. 

Representative — Wentzel    (  ? ) ,  Vice  President. 

Advocate — W.  Nagashima,  Counsellor  at  Law,  10,  Kaga- 
cho,  Kyobashi  Ku,  Tokyo. 


•602  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

A  protest  has  been  filed  by  W.  Nagashima,  advocate  of  Wentzel, 
representative  of  the  petitioner,  the  Eastern  Chinese  Railway  Co., 
against  the  decision  given  by  the  Sasebo  Prize  Court,  on  the  26th  of 
the  5th  month  of  the  37th  year  of  Meiji,  in  the  case  of  the  Russian 
steamship  Mukden  and  her  cargo,  which  were  captured  by  the  Japanese 
man-of-war  Heiyen  in  the  port  of  Fusan,  Korea,  on  the  6th  of  the  2nd 
month  of  the  37th  year  of  Meiji.  The  original  Court  condemned  the 
ship  and  the  goods  Nos.  1  to  45,  Nos.  47  to  52,  and  Nos.  54  to  56, 
as  mentioned  in  the  list,  and  released  the  goods  No.  46  and  No.  53. 
The  protest  has  been  tried  before  this  Court,  the  Public  Procurators, 
K.  Tsuzuki  and  B.  Ishiwatari,  taking  part. 

The  purport  of  the  protest  filed  by  the  advocate,  W.  Nagashima, 
is  as  follows: 

(Here  the  statement  is  omitted  to  avoid  repetition  of  the  original 
decision. ) 

The  decision  of  this  Court  is  explained  as  follows:  The  advocate 
pleads  in  No.  1  of  the  protest,  that  since  Japan  and  Russia  entered 
the  state  of  war  on  the  8th  of  the  2nd  month  of  the  37th  year  of 
Meiji,  that  is,  when  the  naval  action  of  Port  Arthur  was  fought,  this 
capture,  made  before  that  time,  was  unlawful.  In  No.  2,  he  further 
pleads,  that  the  capture  of  the  ship  under  consideration  was  made 
prior  to  the  time  when  Minister  Kurino  delivered  to  the  Russian  For- 
eign Minister  the  notice  of  the  breach  of  diplomatic  relations,  and 
consequently  she  should  be  released.  But  the  state  of  war  does  not 
commence  necessarily  at  the  moment  when  opposing  armed  forces  open 
fire  upon  each  other,  or  when  a  declaration  of  war  or  any  such  notice 
is  given,  but  rather  when  the  intention  of  going  to  war  is  carried 
into  effect  or  when  such  intention  is  publicly  announced.  When, 
because  of  Russia's  unreasonable  behaviour,  an  amicable  settlement 
of  the  diplomatic  negotiations  between  Japan  and  Russia  became  ut- 
terly hopeless,  and  when  it  became  certain  that  Russia's  intention  was 
to  make  warlike  preparations  and  to  compel  Japan  to  submission,  by 
force  of  arms,  our  government,  on  the  5th  of  the  2nd  month  of  the 
37th  year  of  Meiji,  despatched  instructions  to  the  Japanese  Minister, 
accredited  to  Russia,  to  notify  that  state  that  diplomatic  relations  with 
her  were  at  an  end.  At  the  same  time,  the  Imperial  fleet  made  prep- 
aration for  war  and  left  Sasebo  next  day,  the  5th  at  7  a.m.,  with 
the  intention  of  opening  hosilities.  On  the  way,  the  Japanese  fleet 
captured  the  steamship  Ekaterinoslav  of  the  Russian  Volunteer  Fleet 
Company,  which  was  a  vessel  liable  to  naval  service  in  time  of  war. 
This  was  nothing  more  than  the  carrying  out  of  the  hostile  intention, 
and  any  capture  made  after  that  time  is  lawful.  Moreover,  the  ship 
was  captured  after  the  Imperial   Government,  on  the   6th  of  the  2nd 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  603 

month  at  2  p.m.,  had  notified  the  Russian  Minister  at  Tokyo  of  the 
breach  of  diplomatic  relations.  Thus  the  first  and  second  points  of 
the  protest  have  no  ground. 

In  No.  3  and  No.  4  of  the  protest,  the  advocate  argues  that  the 
goods  mentioned  in  the  advertisement  of  the  Official  Gazette  under  the 
Eastern  Asia  Company,  and  the  goods  No.  31,  are  the  property  of  the 
consignor,  and  ought,  therefore,  be  released.  But  goods  shipped  by 
a  person  living  outside  the  enemy's  territory,  in  an  enemy's  vessel  and 
consigned  to  a  person  residing  in  the  enemy's  territory,  are  the  enemy's 
property,  and  are  confiscable.  This  is  a  rule  recognised  in  interna- 
tional usage,  and  this  Court  considers  it  fair  and  reasonable.  And 
as  this  rule  is  applicable  to  such  goods,  no  matter  under  what  cir- 
cumstances they  may  have  been  shipped  in  an  enemy  vessel,  the  third 
and   fourth  points  of  the  protest  are  inadmissible. 

The  fifth  point  of  the  protest  cannot  be  a  reason  for  the  release 
of  the  cargo,  unless  it  is  proved  that  the  ship  ought  to  be  released. 

In  No.  6  of  the  protest,  the  advocate  regrets  that  the  Sasebo  Prize 
Court  has  not  definitely  ascertained  the  position  of  Korea  in  Interna- 
tional Law.  But  since  Korea  was  not  an  ordinary  neutral,  a  capture 
made  in  her  waters  cannot  be  said  to  be  unlawful.  Therefore,  the  de- 
cision of  the  Sasebo  Court,  which  stated  that  Korea  was  not  de  facto 
neutral,  is  not  defective,  although  it  does  not  give  any  further  explana- 
tion of  the  position  of  Korea. 

In  No.  7  of  the  protest  the  advocate  argues  that  the  capture  was 
unlawful,  as  it  was  made  before  the  declaration  of  war.  But  when 
hostilities  are  once  opened,  a  belligerent  can  exercise  the  right  of  cap- 
ture, no  matter  whether  the  enemy's  subjects  are  apprised  of  the  fact 
or  not.  This  is  recognised  in  International  Law,  and  consequently, 
No.  7  of  the  protest  has  no  ground. 

In  No.  8  of  the  protest,  the  advocate  maintains  that  the  ship  ought 
to  be  released  in  accordance  with  Imperial  Ordinance  No.  XX.  of  the 
37th  year  of  Meiji.  But  the  ship  under  consideration  does  not  come 
under  the  ordinance,  since  she  left  Nagasaki  on  the  5th  of  the  2nd 
month  of  the  37th  year  of  Meiji,  and  was  captured  when  she  called 
at  Fusan.  Moreover,  the  ordinance  gives  the  favour  of  exemption  from 
capture  only  to  peaceful  private  vessels  and  is  not  applicable  to  a  ship 
that  must  be  considered  as  the  property  of  the  enemy's  government. 
The  Eastern  Chinese  Railway  Company  is  ostensibly  a  private  cor- 
poration, but  according  to  the  statistics  of  the  vessels  in  Russian 
dominions  in  Asia,  published  by  the  Russian  Department  of  Communi- 
cations, all  the  vessels  of  the  same  company  are  included  in  the  list 
of  government  vessels.  Moreover,  in  the  North  China  Affairs  of  the 
33rd  year  of  Meiji,  the  Russian  Government  demanded  indemnity  from 


604  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

China  for  the  damages  received  by  the  same  company  as  damages  sus- 
tained by  the  state.  Thus  the  Russian  Government,  itself,  acknowledges 
that  the  Eastern  Chinese  Railway  Company  is  an  organ  of  the  state. 
The  object  of  the  establishment  of  the  company,  its  organisation,  etc., 
furnish  also  sufficient  evidence  to  prove  that  the  company  is  not  a 
private  corporation.  The  ship  under  consideration  must,  therefore,  be 
considered  as  government  property,  and  is  not  entitled  to  enjoy  the 
benefit   of   Imperial  Ordinance  No.    XX. 

Regarding  No.  9  of  the  protest,  the  circumstances  under  which  the 
enemy's  goods  were  shipped  in  an  enemy's  vessel,  have  no  effect  upon 
a  belligerent's  right  of  capture,  as  is  explained  in  connection  with  No. 
3  of  the  protest.     Thus  No.  9  too  is  without  foundation. 

The  decision  of  this  Court  is,  therefore,  as  follows: 

This  protest  is  hereby  rejected. 

Given  this  3rd  day  of  the  7th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 

Case  IX.     The  Nadajda. 

Published  in  the  Official  Gazette,  Tokyo. 

Decision  of  the  Yokosuka  Prize   Court. 

The  following  decision  has  been  given  by  the  Yokosuka  Prize  Court 
on  the  sailing  vessel  Nadajda,  12,  5th  month  of  the  37th  year  of  Meiji. 

Decision. 

In  the  case  of  the  sailing  vessel  Nadajda,  captured  by  the  Imperial 
man-of-war  Takao,  at  Hakodate  on  the  17th  of  the  2nd  month  of  the 
37th  year  of  Meiji,  the  following  decision  is  given  after  due  examina- 
tion. 

Text  of  the  Decision. 

The  sailing  vessel   Nadajda  is  hereby  declared  a  lawful   prize. 
Facts  and  the  Grounds  of  the  Decision. 

The  sailing  vessel  Nadajda  is  the  property  of  Ephigehe  Josepho- 
vitch  Nicolske,  a  Russian  subject,  and  is  a  merchantman  principally 
employed  for  transportation  of  goods.  The  vessel  is  registered  at  Vladi- 
vostock,  Russian  Empire,  and  has  permission  to  fly  the  merchant  flag 
of  the  Russian  Empire  and  a  license  to  voyage  the  sea  for  commerce 
or  transportation  of  goods.  The  vessel  entered  the  port  of  Hakodate 
on  the  28th  day  of  the  11th  month  of  the  36th  year  of  Meiji  and  had 
been  staying  there  since,  when  on  the  6th  of  the  2nd  month  of  the 
37th  year  of  Meiji,  the  state  of  war  began  between  Japan  and  Russia. 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  605 

On  the  9th  of  the  same  month,  an  Imperial   Ordinance  was  promul- 
gated concerning  exemption  of  Russian  merchantmen  from  capture. 

The  captain  of  the  Imperial  man-of-war  Takao  then  ordered  the 
sailing  vessel  under  consideration  to  leave  Japanese  waters  within  the 
period  during  which  Russian  merchantmen  were  exempt  from  cap- 
ture, that  is  to  say,  on  or  before  the  16th  of  the  2nd  month  of  the 
37th  year  of  Meiji.  The  vessel,  however,  remained  in  port  even  after 
the  lapse  of  this  period  of  grace,  and  therefore  the  captain  of  the 
Imperial  man-of-war  Takao  sent  Joji  Tajima,  an  officer  of  the  man- 
of-war,  to  the  sailing  vessel  to  capture  her  according  to  the  Regula- 
tions Governing  Captures  at  Sea  of  the  Empire  of  Japan. 

The  above  facts  are  from  the  statement  of  the  captain  of  the  Im- 
perial man-of-war  Takao,  the  report  of  Joji  Tajima,  officer  of  the  same 
man-of-war,  the  license  of  navigation,  the  testimonies  given  by  the 
said  Joji  Tajima  and  by  Iwangaritch,  representative  of  the  master  of 
the  sailing  vessel  Nadajda,  etc. 

That  in  time  of  war  a  belligerent  has  the  right  to  capture  the 
enemy's  merchantmen,  except  when  he  voluntarily  exempts  them,  is 
recognised  both  in  the  Japanese  Regulations  Governing  Captures  at 
Sea,  and  in  the  precedents  and  theory  of  International  Law.  The  ves- 
sel under  consideration  did  not  leave  the  port  within  the  period  of 
grace  prescribed  in  the  Imperial  Ordinance  concerning  exemption  of 
Russian  merchantmen  from  capture,  and  consequently  she  is  liable  to 
capture.     And  therefore  the  decision  is  given  as  stated  in  the  text. 

Given  this  12th  day  of  the  5th  month  of  the  37th  year  of  Meiji, 
at  the  Yokosuka  Prize  Court,  after  hearing  the  opinion  of  K.  Yanagita, 
Public  Procurator  of  the  Yokosuka  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 

Case  X.     The  Thalia. 
Published  in  the  Official  Gazette,  Tokyo,  on  May  5,  1905. 

Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  8th  of  the  8th  month  of  the 
37th  year  of  Meiji,  by  the  Yokosuka  Prize  Court,  in  the  case  of  the 
Russian  steamer  Thalia. 

Decision. 
No.  IV. 

In  the   case  of  the  steamer   Thalia,  captured  at  Hakodate  by  the 

Japanese  man-of-war  Takao  on  the  13th  of  the  4th  month  of  the  37th 

year  of  Meiji,  trial  has  been  held  and  the  following  given: 


606  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Text  of  the  Decision. 
The  steamer  Thalia  is  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamer  Thalia  is  the  property  of  the  Kamtchatka  Commercial 
and  Industrial  Company,  of  St.  Petersburg,  Russia,  and  is  a  seagoing 
vessel.  The  vessel  was  undergoing  repairs  at  the  Hakodate  Dockyard 
Company  by  the  order  of  Baron  N.  Blaggen  (?),  manager  of  the  Kamt- 
chatka Commercial  and  Industrial  Company,  being  hauled  up  by  the 
side  of  the  patent  slip  {on  land)  in  the  grounds  of  the  Dockyard  Com- 
pany, when  she  was  captured  by  Lieutenant  J.  Tajima,  of  the  Japanese 
man-of-war  Takao,  under  orders  of  the  captain. 

The  above  facts  are  clear  from  the  report  submitted  by  Lieutenant 
J.  Tajima  concerning  the  capture,  the  reply  of  S.  Sonoda,  active  man- 
ager of  the  Hakodate  Dockyard  Company,  addressed  to  Captain  Y. 
Yashiro  of  the  Takao,  the  letter  of  J.  A.  Wilson,  proprietor  of  Howell 
&  Co.,  of  Hakodate,  and  the  report  of  the  Councillor  in  charge  of 
the  case. 

The  purport  of  the  petition  of  Alexis  Brozoloff  (?)  and  Enmore 
Mandel  (?),  representatives  of  the  Kamtchatka  Commercial  and  Indus- 
trial Company,  is  as  follows: 

The  ship  is  the  property  of  the  Kamtchatka  Commercial  and  Indus- 
trial Company,  and  was  captured  while  she  was  undergoing  repairs,  on 
land,  in  the  compound  of  the  Hakodate  Dockyard  Company.  Accord- 
ing to  the  works  of  Hall,  Carvot,  and  other  scholars,  the  places  where 
maritime  captures  can  be  made  are  the  high  seas  and  the  territorial 
waters  of  the  belligerents;  and  any  goods  lying  outside  of  such  limits 
are  inviolable.  This  principle  seems  to  have  been  adopted  in  the  Japa- 
nese Rules  Governing  Captures  at  Sea.  Now,  the  limits  of  territorial 
waters  are  measured  from  the  shore  a  certain  definite  distance  seaward. 
Thus  territorial  waters  never  extend  over  other  than  sea  surface,  and 
consequently  it  is  impossible  that  land  within  a  dockyard  should  lie 
within  such  area.  And  admitting  that  captures  may  be  made  on  rivers 
and  lakes,  which  are  not  included  in  territorial  waters,  then  there  must 
be  steamers  and  other  kinds  of  vessels,  besides  those  floating  on  rivers 
and  lakes,  that  are  not  governed  by  the  rules  of  maritime  law;  because 
such  vessels  are  recognised  in  the  2nd  clause  of  Art..LIII.  of  The  Hague 
Treaty.  If  so,  they  must  be  those  vessels,  such  as  the  one  under  con- 
sideration, which  lie  on  the  land.  In  other  words,  vessels  such  as  the 
one  under  consideration  are  outside  the  jurisdiction  of  maritime  law, 
as  mentioned  in  the  said  article.  Moreover,  property  on  land  or  at  sea 
is  distinguished  not  by  its  nature  and  use,  but  by  the  place  where 
found  when  captured.    And  when  there  is  any  doubt  about  this  distinc- 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  607 

tion,  it  is  right  to  consider  such  property  as  property  on  land,  because 
the  gradual  tendency  of  International  Law  is  to  adopt  the  principle 
of  the  inviolability  of  the  enemy's  private  property  at  sea.  Further- 
more, the  vessel  under  consideration  was  damaged  to  such  an  extent 
that  she  could  not  move  with  her  own  steam,  and  was  brought  (to 
Hakodate)  on  board  the  steamship  Progress.  She  ought,  therefore,  to 
be  considered  as  cargo.  In  a  word,  the  vessel  ought  not  to  be  governed 
by  the  rules  of  capture  at  sea,  because  the  place  of  capture  was  on 
land,  and  because  her  character  was  that  of  private  property  on  land, 
and  the  petitioners  request  her  speedy  release. 

After  due  consideration,  the  Court  concludes  as  follows: 

In  order  to  maintain  vessels  in  serviceable  condition  they  must  at 
certain  intervals  be  taken  into  docks,  etc.,  and  repaired  or  repainted. 
This  is  indispensable  to  modern  vessels.  Their  lying  in  docks  or  such 
places  is,  therefore,  their  normal  condition.  And  the  argument  that 
vessels  hauled  on  shore  for  docking  or  other  purposes  lose  their  char- 
acter of  property  afloat,  as  is  the  case  with  ordinary  goods  when  they 
are  landed,  is  inadmissible  both  from  theoretical  and  practical  points  of 
view.  Thus  in  the  laws  and  usage  of  the  Powers,  and  International 
Law,  no  distinction  is  made  between  vessels  in  docks,  etc.,  and  those 
floating  in  ports,  and  all  the  rights  and  obligations  of  vessels  are  held 
to  be  the  same  in  both  cases.  In  other  words,  since,  in  ordinary  times,, 
vessels  in  docks  and  others  afloat  are  considered  the  same,  so,  as  a 
natural  result,  they  are  properly  liable  to  capture  as  if  actually  at  sea 
in  time  of  war.  Moreover,  the  capture  of  such  vessels  accords  with  the; 
principles  of  International  Law  which  authorises  captures  at  sea. 

Again,  the  petitioners  cite  the  2nd  clause  of  Art.  LILT,  of  The  Hague 
Treaty,  and  argue  that  vessels  on  land  are  not  liable  to  capture.  The 
words  of  that  clause  are :  "  Steamers,  and  other  ships,  apart  from  cases- 
governed  by  Maritime  Law."  Thus  that  provision  excludes  vessels  gov- 
erned by  Maritime  Law,  and  consequently  is  not  applicable  to  vessels,. 
such  as  the  one  under  consideration,  which  lie  at  a  place  considered  to 
be  the  same  as  the  sea  surface  and  are  under  the  rule  of  Maritime  Law. 
It  is  also  beyond  question  that  a  vessel  cannot  be  considered  as  cargo, 
on  account  of  having  been  carried  by  another  vessel,  after  she  resumes, 
her  normal  condition  as  a  vessel.  Thus  the  capture  cannot  be  said  ta 
have  been  made  at  a  place  beyond  the  jurisdiction  of  Maritime  Law, 
even  though  it  was  on  the  land  by  the  side  of  the  patent  slip  of  the- 
Hakodate  Dockyard  Company,  nor  can  the  vessel  be  considered  as  prop- 
erty on  land. 

For  the  above  reasons  the  capture  of  the  steamer  Thalia  made  by 
the  captain  of  the  man-of-war  Takao  was  lawful,  and  the  decision,  as. 
stated  in  the  text,  has  been  given. 


608  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Given  this  8th  day  of  the  8th  month  of  the  37th  year  of  Meiji,  at 
the  Yokosuka  Prize  Court,  the  Public  Procurator  of  the  Court  Yana- 
gida  being  present. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

•Published  in  the  Official  Gazette,  Tokyo,  on  May  17,  1905. 
The  decision  was  given  on  the  9th  of  the  5th  month  of  the  38th  year 
of  Meiji,  by  the  Higher  Prize  Court,  in  the  case  of  the  Russian  steam- 
ship Thalia. 

Decision. 
Case  No.  XXVII. 

Petitioner — The    Kamtchatka    Commercial    and    Industrial 

Company,  St.  Petersburg,  Russia. 
Representatives — Alexis  Brozoloff  (?),  Enmore  Mandel  (?). 
Advocate — K.  Gorai,  Counsellor  at  Law,  4.4  chome,  Fujimi 

Cho,  Kojimachi  ku,  Tokyo. 

A  protest  has  been  filed  by  K.  Gorai,  Counsellor  at  Law,  advocate  of 
Alexis  Brozoloff  and  Enmore  Mandel,  representatives  of  the  petitioner, 
the  Kamtchatka  Commercial  and  Industrial  Company,  against  the  de- 
cision of  the  Yokosuka  Prize  Court,  given  on  the  8th  of  the  8th  month 
of  the  37th  year  of  Meiji,  in  the  case  of  the  steamer  Thalia,  belonging 
to  the  Kamtchatka  Commercial  and  Industrial  Company,  of  St.  Peters- 
burg, Russia,  captured  at  Hakodate  by  the  Japanese  man-of-war  Takao 
on  the  13th  of  the  4th  month  of  the  37th  year  of  Meiji.  The  decision 
of  the  Yokosuka  Prize  Court  condemned  the  steamer.  The  trial  has 
been  held  before  this  Court,  the  Public  Procurators  K.  Tsuzuki  and 
B.  Ishiwatari  taking  part. 

The  purport  of  the  protest  of  the  advocate,  K.  Gorai,  is  as  follows: 

The  decision  given  by  the  Yokosuka  Prize  Court,  condemning  the 
steamer  Thalia,  is  unlawful,  and  the  advocate  requests  that  it  be  over- 
ruled and  the  vessel  be  released.  As  the  reason  for  the  protest,  the 
advocate  states: 

I.  In  the  original  decision  it  is  explained  that  "  A  vessel  lying  in 
a  dock  or  any  such  place  is,  therefore,  its  normal  condition.  And 
the  argument  that  vessels  hauled  on  shore  for  docking  or  other  pur- 
poses lose  their  character  of  property  afloat,  as  is  the  case  with  ordinary 
goods  when  they  are  landed,  is  inadmissible  both  from  the  theoretical 
and  practical  points  of  view."  This  explanation  is  based  upon  the  char- 
acter of  the  Thalia  as  a  vessel  and  takes  no  notice  of  the  place  where 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  609 


captures  at  sea  can  be  made.  It  is  contrary  to  the  principle  that  cap- 
tures at  sea  canbe  made  only  in  territorial  waters  or  on  the  high  seas, 
and  is  unlawful  in  the  following  particulars: 

(1)  It  is  stated  in  Art.  II.  of  the  Japanese  Rules  Governing  Cap- 
tures at  Sea,  "  visit,  search,  or  capture  shall  not  be  made  in  neutral 
waters,  nor  in  waters  clearly  placed  by  treaty  stipulations  outside  the 
zone  of  hostile  operations."  That  nothing  is  said  of  land  is  because 
captures  may  not  be  made  on  land,  and  consequently  there  is  no  need 
of  prescribing  such  an  exception.  The  denial  of  the  right  of  capture 
elsewhere  than  on  the  water  being  the  spirit  of  the  rule  mentioned 
above,  the  capture  under  consideration  is  in  violation  of  Japanese  Law 
of  the  Rules  Governing  Captures  at  Sea. 

(2)  In  (g)  of  Art.  XXIII.  and  Art.  XLVI.  of  the  Hague  Treaty, 
published  on  the  21st  of  the  11th  month  of  the  33rd  year  of  Meiji,  it  is 
provided  that  the  enemy's  private  property  shall  be  respected,  and  that 
it  shall  not  be  seized  nor  confiscated.  Thus  the  principle  of  the  in- 
violability of  private  property  is  adopted,  and  as  no  limitation  is  made 
as  to  kinds  of  such  property,  the  spirit  of  that  provision  is  not  to 
except  vessels.  Moreover,  in  the  2nd  clause  of  Art.  LOT.  of  the  same 
treaty  there  occurs  a  phrase,  "  steamers  and  other  ships,  apart  from 
cases  governed  by  Maritime  Law  " ;  so  that  even  vessels,  when  they  lie 
outside  the  limits  where  the  right  of  capture  at  sea  may  be  exercised, 
must  be  governed  by  this  rule.  Furthermore,  there  is  in  the  same  clause 
another  phrase,  "  landed  telegraphs,"  and  as  this  phrase  includes  that 
part  of  a  submarine  cable  that  lies  on  land,  so  the  spirit  of  the  rule  is 
to  give  protection  to  marine  goods  when  they  lie  where  the  right  of 
capture  cannot  be  enforced.  The  capture  under  consideration  is,  there- 
fore, a  violation  of  the  Hague  Treaty,  to  which  Japan  is  a  party. 

(3)  The  capture  of  the  Thalia  on  land  is  against  the  rules  of 
International  Law. 

(a)  In  the  original  decision  it  is  said  that  vessels  lying  in  docks 
or  such  places  are  vessels  still,  and  do  not  lose  their  character  of  prop- 
erty afloat,  nor  are  they  exempt  from  capture.  Now  vessels  lying  in 
neutral  waters,  or  other  places  clearly  placed  by  treaty  stipulations 
outside  the  zone  of  hostilities,  also  retain  their  character  of  property 
afloat.  But  such  vessels  are  not  liable  to  capture,  because  the  places 
where  they  lie  are  inviolable  under  International  Law.  This  ship, 
when  she  was  captured,  was  on  land  near  the  dock;  and  is  not  private 
property  on  land  inviolable  under  International  Law?  It  is  very  clear, 
therefore,  that  the  vessel  was  not  liable  to  capture — just  as  in  terri- 
torial waters  or  other  places  by  treaty  outside  the  zone  of  hostilities — 
unless  it  is  proved  that  land  near  the  docks  is  also  sea  surface.  The 
original  Court   took   as  criterion  the  character  of   vessels   as  property 


610  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

afloat,  but  did  not  take  into  consideration  the  limits  within  which  alone 
the  right  of  capture  can  be  exercised,  and  thus  gave  an  unlawful 
decision. 

( 6 )  The  majority  of  international  jurists  agree  that  captures  on  land 
shall  not  be  made.  Hall  says,  "  Enemy  goods  which  a  belligerent  finds 
within  his  territory  are  in  fact  exempt  from  confiscation,  except  those 
which  entered  his  territorial  waters  after  the  commencement  of  war." 
Masset  says,  "  Civilised  countries  respect  on  land  non-combatant  people 
and  private  property  as  far  as  possible,  but  at  sea  they  revert  to  the 
old  barbarous  state,  and  capture  the  vessels  and  merchandise  of  the 
subjects  of  the  enemy's  state."  Rivier  says,  "  A  belligerent  has  the  right 
to  seize  the  enemy's  private,  property  floating  on  the  sea."  Boeck  says, 
"  The  private  property  of  the  enemy's  state  under  the  enemy's  flag 
may  be  captured  on  the  high  seas  and  the  territorial  waters  of  the 
belligerents."  In  Art.  VIII.  of  the  Rules  of  Capture  at  Sea,  resolved 
upon  by  the  Institute  of  International  Law  in  1882,  which  is  a  collec- 
tion of  opinions  of  various  countries,  captures  are  restricted  to  the  sea. 
Thus  it  is  not  difficult  to  understand  the  trend  of  opinions  of  jurists. 
And  if  it  is  the  almost  undisputed  opinion  of  scholars  that  the  right 
of  capture  does  not  extend  to  land  near  docks,  then  the  capture  under 
consideration  is  unlawful  in  theory  also. 

(c)  In  the  original  decision  it  is  said  that  the  capture  of  vessels 
lying  near  docks,  such  as  the  Thalia,  accords  with  the  principle  of 
International  Law  which  authorises  captures  at  sea.  But  not  only 
does  the  capture  on  land  not  accord  with  the  principle  of  capture  at 
sea,  but  it  is  contrary  to  the  principle  by  which  private  property  is 
differently  treated  on  land  and  at  sea.  There  are  many  reasons  which 
necessitate  capture  at  sea,  and  the  chief  of  them  are  as  follows:  (1) 
Pradier-Fodere"  says,  "Enemy  vessels  are  captured  in  the  territorial 
waters  of  belligerents,  because  the  law  of  the  country  cannot  be  en- 
forced, nor  the  right  of  supervision  exercised,  nor  protection  given  to 
property  afloat  as  in  the  case  of  property  on  land."  If  vessels  are  cap- 
tured on  such  grounds,  then  there  is  no  reason  to  capture  vessels  found 
on  land.  Because,  unlike  the  sea,  the  law  can  be  enforced  and  the  right 
of  supervision  exercised  perfectly  and  absolutely  on  land.  (2)  Haute- 
feuille,  in  explaining  the  inviolability  of  private  property  on  land  and 
its  liability  to  capture  at  sea,  says :  "  In  order  to  rob  the  enemy  of  the 
benefits  he  receives  from  his  public  and  private  property,  it  is  sufficient 
on  land  for  a  belligerent  to  occupy  the  enemy's  territory;  but  at  sea 
the  only  method  of  injuring  the  enemy  is  to  confiscate  his  private  prop- 
erty and  to  rob  him  of  the  benefits  he  receives  from  such  property. 
If  enemy  vessels  with  their  cargoes  were  released  and  allowed  to  pro- 
ceed  to   their   country,   the   benefits   which   the   enemy   would   receive 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  611 

directly  or  indirectly  from  them  might  be  very  great.  On  the  other 
hand,  if  they  are  seized,  the  belligerent  will  enjoy  the  benefits  which  his 
enemy  would  have  enjoyed."  According  to  this  principle,  the  vessel 
under  consideration,  if  she  is  required  for  warlike  operations,  may  be 
requisitioned  as  property  on  land  under  the  2nd  clause  of  Art.  LIIL  of 
The  Hague  Treaty,  as  she  was  on  land;  and  in  case  any  attempt  be 
made  to  take  her  away,  then  she  may  be  captured  as  private  property 
at  sea.  If  she  is  kept  in  Japan  as  property  on  land,  there  is  no  fear  of 
her  giving  any  benefit  to  the  enemy  nor  any  injury  to  Japan.  (3)  Funk 
Blentano  and  Sorell  say:  "The  people  of  the  hostile  state  have  their 
property  in  a  belligerent  state,  because  they  rely  on  the  law  of  the 
latter  in  the  protection  of  property  right  in  ordinary  times.  And  as 
war  never  changes  such  national  law,  such  state  must  respect  and  pro- 
tect the  enemy's  private  property  also,  as  long  as  it  continues  to  give 
protection  to  property  rights.  Otherwise  the  result  will  be  that  the 
state  violates  its  own  law."  If  the  enemy's  private  property  is  to  be 
respected  according  to  this  argument,  then  confiscation  of  the  vessel 
under  consideration  will  be  a  violation  of  the  spirit  of  the  Japanese 
law,  as  she  was  on  land.  (4)  Rivier,  Hautefeuille,  and  other  scholars 
say:  "Unlike  goods  on  land,  vessels  can  be  armed  and  used  as  men- 
of-war,  or  they  may  be  used  for  important  service,  as  transports,  etc. 
This  is  the  reason  why  captures  at  sea  are  necessary."  Even  according 
to  this  principle  it  is  proper  to  release  this  vessel,  because  if  she  is 
required  for  warlike  purposes,  she  may  be  requisitioned,  under  the  2nd 
clause  of  Art.  LIII.  of  The  Hague  Treaty,  as  a  vessel  not  coming  under 
the  rule  of  Maritime  Law.  (5)  Wheaton,  Rivier,  and  other  scholars 
say :  "  The  object  of  land  warfare  is  to  occupy  and  take  the  enemy's 
territory,  and  that  of  maritime  war  is  to  destroy  his  commerce  and 
navigation.  This  is  the  reason  why  the  violation  of  private  property 
is  not  necessary  for  the  former,  but  is  necessary  for  the  latter."  Thus 
the  object  of  captures  at  sea  is  to  injure  the  enemy's  commerce  and  to 
bring  the  war  to  an  end;  and  not  to  extend  the  hardship  of  capture 
after  the  close  of  it.  The  vessel  under  consideration  is,  on  one  hand, 
under  supervision  of  the  Government,  and,  on  the  other,  she  cannot  go 
home  unless  by  sea.  While  this  ship  remains  on  land,  the  object  of  in- 
juring the  enemy's  commerce  is  unhindered  by  her,  even  if  she  is  held 
inviolable  as  a  property  on  land. 

(d)  Extension  of  maritime  captures  even  to  land  near  docks  is 
contrary  to  the  fundamental  principle  concerning  the  agents  which 
make  war.  The  agents  which  make  war  are  states,  and  private 
persons  can  never  be  such  agents.  Rivier  says :  "  Those  which  have  the 
right  of  making  war  are  states  alone.  Therefore,  there  is  no  war  be- 
tween private  persons  nor  between  a  state  and  private  persons."     Inter- 


(512  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

national  jurists  of  Europe  and  America,  with  the  exception  of  those  of 
Great  Britain,  agree  in  this  principle,  and  consequently  the  inviolability 
of  private  property  is  recognised  as  a  fundamental  principle  throughout 
the  world.  Art.  XL VI.  of  The  Hague  Convention  is  an  expression  of 
this  principle;  and  as  to  the  usage  of  maritime  capture,  it  is  nothing 
more  than  an  exception  to  this  general  rule.  In  case  there  is  doubt 
whether  goods  are  property  on  land  or  at  sea,  being  found  on  land 
near  dock,  as  is  the  case  with  the  vessel  now  under  consideration,  and 
doubt  whether  they  are  to  be  released  or  confiscated,  such  goods  ought 
to  be  considered  as  property  on  land  and  released,  according  to  the 
general  rule  that  an  exception  shall  be  taken  in  the  narrow  sense. 
This  is  a  natural  result  of  the  fundamental  principle  that  the  agents 
which  make  war  are  states  alone. 

(e)  In  the  original  decision  docks  and  land  near  them  are  consid- 
ered to  be  the  same  as  the  sea.  But  such  land  and  water  surface  of 
ports  are  clearly  different  in  their  character  from  the  legal  point  of 
view,  as  is  explained  in  the  following: 

(1)  Docks  and  land  near  them  may  be  owned  by  a  state  or  by 
private  persons,  but  the  ownership  of  the  water  surface  of  a  port  is 
never  allowed  to  private  persons.  K.  Amani  says :  "  If  a  piece  of  land 
includes  part  of  the  water  surface  of  a  port,  the  ownership  of  the 
water  surface  differs  from  that  of  the  land  in  this  point,  that  it  does 
not  give  the  owner  the  absolute  right  of  disposal."  The  ownership  of 
a  dock  and  land  near  it  is  absolute,  and  the  owner  has  the  right  of 
preventing  any  intruder  who  attempts  to  enter  them  against  his  will. 
On  the  other  hand,  the  ownership  of  a  port  does  not  allow  the  owner 
to  keep  away  vessels  that  enter  the  port  to  take  shelter  from  the 
weather  or  to  escape  from  dangers.  Again,  the  owner  of  land  is  free  to 
permit  or  refuse  another  to  use  his  land;  but  the  owner  of  a  port, 
that  is,  a  state,  must  allow  use  of  the  port  equally  to  foreign  countries. 

(2)  In  docks,  and  land  near  them,  the  harmless  passage  of  foreign 
armed  forces  is  absolutely  forbidden,  but  in  the  case  of  the  water  sur- 
face of  a  port,  the  state  must  permit  the  harmless  passage  of  foreign 
men-of-war,  unless  dangerous  to  the  safety  of  that  state. 

There  being  such  differences  between  land  and  water  surface,  there 
is  no  reason  why  the  right  of  maritime  capture  should  extend  to  the 
neighbourhood  of  docks,  which  is  purely  land.  Consequently  the  cap- 
ture of  the  vessel  under  consideration  was  unlawful. 

(f)  In  the  original  decision  the  Court  recognised  that  the  place  of 
capture  of  the  vessel  was  land  by  the  side  of  the  patent  slip;  but, 
saying  that  the  place  was  analogous  to  a  dock,  the  original  Court  tried 
to  dispose  of  the  case  by  reasoning  indiscriminately  as  if  the  place  was 
the  same  as  the  dock.     Land  by  the  side  of  a  dock,  however,  is  not  a 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  613 

dock.  Such  land  is  not  the  place  where  a  vessel  naturally  lies  when 
under  repair.  Were  it  admitted  that  the  right  of  maritime  capture 
extends  to  such  land,  then,  when  a  vessel  lies  at  a  place  10  "  ri "  or 
100  "  ri "  from  the  shore  for  repair,  such  place  must  be  considered  as 
within  the  area  where  the  right  of  capture  can  be  exercised.  Even  if 
it  were  admitted  that  a  vessel  lying  in  dock  is  in  its  natural  condition, 
and  must  be  considered  just  the  same  as  one  floating  in  a  port,  a  vessel 
lying  on  land  outside  the  dock  cannot  be  said  to  be  in  its  natural  con- 
dition. The  patent  slip  and  the  land  by  its  side  may  be  only  a  step 
in  actual  distance,  but  to  the  eye  of  Law  such  distance  is  very  great. 
The  place  where  the  vessel  was  captured  was  on  land,  and  as  it  was 
outside  the  limits  within  which  the  right  of  maritime  capture  can  be 
exercised,  the  vessel  ought  to  be  released. 

II.  The  original  decision,  which  considered  the  vessel  as  being  in 
the  natural  state  of  a  vessel,  mistook  the  facts: 

(1)  The  vessel  was  brought  on  board  the  steamship  Progress  to 
Hakodate  to  be  repaired  there.  The  original  decision,  recognising,  on 
one  hand,  that  the  vessel  was  cargo  while  she  lay  on  board  the  Progress, 
explains,  on  the  other,  that,  "  She  cannot  be  considered  as  cargo  .  .  . 
after  she  resumes  her  normal  condition  as  a  vessel."  But  why  cannot 
goods,  which  were  cargo  in  spite  of  being  a  vessel,  be  regarded  on  land 
as  private  property,  in  spite  of  being  a  vessel?  The  vessel  was  cargo, 
because  she  was  carried  by  another  vessel  for  the  purpose  of  repair. 
She  was  hauled  on  shore  for  the  same  purpose,  and  while  the  same  pur- 
pose continues,  there  is  no  reason  that  the  vessel  should  change  its 
character.  If  it  is  argued  that  the  vessel  resumed  its  normal  condition 
as  it  was  once  lowered  into  water,  then  would  it  be  property  on  land 
in  case  it  were  landed  direct  from  the  ship?  This  is  an  unreasonable 
argument.  The  vessel  was  lowered  into  the  water  for  a  time,  just  as 
lumber  is  lowered  into  the  water  to  land  it,  and  the  process  is  nothing 
more  than  a  method  of  transportation. 

(2)  At  the  time  of  capture  the  repairs  were  not  completed,  and  the 
vessel  was  not  capable  of  navigation.  This  is  clear  from  the  report  of 
the  prize  officer.  And  it  is  more  proper  to  consider  such  a  vessel,  in- 
capable of  navigation,  as  goods  rather  than  a  vessel. 

(3)  At  the  time  of  capture  the  vessel  had  no  instruments  of  navi- 
gation, no  flag,  no  ship's  papers,  and  no  crew,  and  lacked  all  other 
conditions  essential  for  a  vessel.  Thus  the  vessel  must  be  said  to  have 
been  in  a  condition  to  be  treated  as  goods  rather  than  as  a  vessel.  The 
vessel  is,  therefore,  private  property  on  land,  lying  by  the  side  of  a  dock, 
and  ought  to  be  released  under  The  Hague  Treaty. 

The  gist  of  the  answer  of  the  Public  Procurator  of  the  Yokosuka 
Prize  Court,  Y.  Kobayashi,  S.  Uchida,  and  K.  Yanagita,  to  the  above 


614  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

protest  is  that  the  capture  was  lawful,  and  they  see  no  objection  to  its 
condemnation,  for  the  following  reasons: 

(1)  Concerning  the  place  where  captures  can  be  made,  the  majority 
of  the  precedents  and  theoretical  opinions  limits  it  negatively,  and  as 
yet  it  has  not  been  defined  positively.  Lushington  and  Holland  explain 
that  "  the  right  of  capture  may  be  exercised  in  all  waters  except  the 
territorial  waters  of  neutral  States,"  because  they  consider  that  mari- 
time property  is  not  generally  found  except  on  the  water.  They  do 
not  mean  that  in  rare  occasions,  when  maritime  property  is  found  else- 
where than  on  the  water,  it  is  exempt  from  capture.  Were  it  admitted 
that  there  are  positive  limits,  and,  the  advocate  argues,  to  the  place 
within  which  captures  may  be  made,  even  then  the  vessel  must  be  said 
to  have  been  captured  within  such  limits.  The  Procurators  do  not  know 
upon  what  authority  the  so-called  fundamental  principle  of  the  advo- 
cate is  based.  But  probably  the  advocate  considers  as  positive  limits 
those  enumerated  by  Phillimore  as  limits  within  which  visit  and  search 
may  be  made,  and  by  Hall  as  limits  within  which  captures  are  com- 
monly made;  that  is  to  say,  the  high  seas  and  territorial  waters  of 
belligerents.  The  word  "  waters "  is  the  collective  name  of  geographic 
divisions,  such  as  ports,  gulfs,  inlets,  river  mouths,  etc.,  and  includes, 
broadly  speaking,  what  is  called  in  common  language  the  sea.  There- 
fore "  waters "  are  not  necessarily  always  covered  with  water.  Some 
part  of  them  may  be  dried  for  a  time  by  natural  phenomena,  such  as 
rise  and  fall  of  tides,  or  by  human  works.  If  the  word  "  waters "  is 
taken  in  the  sense  of  water  surface,  it  is  a  mistake.  A  dock  may  be 
said  to  form  a  "water"  by  itself;  or,  considering  the  fact  that 'it 
always  exists  in  connection  with  the  anchorages  of  vessels,  it  may  be 
considered  as  constituting,  together  with  other  parts,  a  "  water,"  such 
as  a  port  or  river  mouth.  In  either  case,  captures  in  dock  are  always 
captures  in  waters.  If  the  advocate  means  by  the  word  "  land,"  on 
which,  he  says,  captures  are  not  allowable,  all  the  surface  of  the  earth 
not  covered  by  water,  it  is  an  unauthorised  opinion,  which  even  scholars 
who  define  positively  the  area  within  which  captures  may  be  made  do 
not  dare  to  advocate.  A  vessel  while  under  repair  in  a  dock  may  be 
hauled  to  its  side,  or  the  dock  may  be  dried,  from  the  necessity  of  the 
work,  but  such  a  vessel  cannot  be  said  to  lie  on  land  on  that  account. 

(2)  In  Art.  VIII.  of  the  Resolution  of  the  Institute  of  International 
Law,  made  at  Turin  in  1882,  cited  by  the  advocate,  it  is  stated  that 
the  right  of  capture  may  be  exercised  in  waters  within  3  miles  from  the 
shore  of  the  belligerents  and  on  the  open  sea. 

And  the  phrase  "  Water  surface  "  is  not  used  as  the  advocate  says. 
Consequently  there  is  no  such  phenomenon  that  a  vessel  beached  at 
tide-water  loses  protection  and  regains  it  from  time  to  time,  according 


I.]  RUSSIAN   VESSELS.  615 

to  the  rise  and  fall  of  the  tides.  The  above  article  was  not  adopted  in 
the  Japanese  Rules  Governing  Captures  at  Sea,  because  the  positive 
definition  of  the  limits  within  which  captures  may  be  made  has  not 
been  generally  adopted;  and  since  it  concerns  grave  interests  of  the 
country  there  is  no  necessity  for  Japan  to  impose  upon  herself  restric- 
tions without  reciprocity  on  the  part  of  her  enemy. 

(3)  The  advocate  says  that  in  Art.  II.  of  the  Rules  Governing  Cap- 
tures at  Sea,  only  the  territorial  waters  of  neutral  countries  and  waters 
for  which  there  are  special  stipulations  are  mentioned  as  limits  within 
which  no  capture  is  allowed,  but  nothing  is  said  of  land,  such  as  neutral 
territories,  which  are,  of  course,  to  be  excluded  from  the  sphere  of  cap- 
ture. This  proves,  he  argues,  that  captures  may  not  be  made  even  in 
the  territories  of  belligerents.  But  there  is  no  need  for  rules  governing 
captures  to  include  all  other  rules  also,  and  no  provision  was  made  for 
land,  because  there  was  no  need  of  it. 

(4)  The  Hague  Convention  quoted  by  the  advocate  is  the  rules  for 
warfare  on  land.  This  is  recognised  by  the  advocate  himself.  Why, 
then,  does  he  attempt  to  apply  it  to  a  case  of  capture  made  by  the 
Imperial  Navy?  Moreover,  does  not  the  phrase  "vessels  not  governed 
by  Maritime  Law  "  imply  that  land  forces  also  may  encounter  vessels 
that  are  governed  by  Maritime  Law? 

(5)  In  order  to  confirm  his  own  opinion  that  no  capture  may  be 
made  outside  the  water  surface,  the  advocate  seems  somewhat  to  strain 
the  opinion  of  scholars.  Hall  only  recognised  that  there  is  a  tendency 
to  exempt  from  capture  an  enemy's  property  lying  in  the  territory  of 
a  belligerent  from  a  time  prior  to  the  opening  of  war;  Masset's  opinion 
is  nothing  more  than  a  narration  of  common  facts,  and  he  never  meant 
to  define  clearly  the  limits  of  the  right;  and  Rivier  used  the  phrase, 
"  property  afloat,"  in  the  sense  of  maritime  property,  and  he  never 
intended  to  make  a  distinction  between  goods  actually  floating  on  water 
and  those  not  so  floating. 

(6)  The  advocates  cited  several  opinions  of  scholars  concerning  the 
reason  why  only  maritime  property  is  liable  to  capture,  and  tried  to 
show  that  the  capture  of  the  vessel  under  consideration  does  not  con- 
form with  any  of  them.  But  the  variety  of  these  opinions  rather  shows 
that  these  quotations  are  not  to  the  point.  And  whatever  these  opin- 
ions are,  there  is  no  reason  why  the  vessel  under  consideration  should 
be  released,  when  the  confiscation  of  private  property  at  sea  is  prac- 
tised as  an  indispensable  act  of  war. 

(7)  The  advocate  argues  that  it  is  the  general  opinion  of  the  present 
day  that  war  is  carried  on  only  between  states,  and  that  captures  at 
sea,  where  private  persons  are  considered  as  enemies,  is  an  exception. 
In   doubtful    cases,    therefore,   the  original    principle   must    be    applied. 


616  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

But  at  sea,  as  on  land,  the  object  of  warfare  is  to  injure  the  enemy's 
State ;  and  the  people  of  the  belligerent  State  suffer,  unavoidably,  losses 
from  the  reflex  actions  of  war  as  well  on  land  as  at  sea.  Private  prop- 
erty at  sea  and  on  land  are  differently  treated,  simply  because  the  rules 
of  warfare  at  sea  and  those  on  land  have  been  differently  developed. 
This  is  recognised  by  the  greater  number  of  scholars.  And  if  it  must 
be  distinguished  which  is  the  original  principle  and  which  the  excep- 
tion, then,  from  their  historical  development,  the  confiscation  of  private 
property  must  be  considered  rather  as  the  fundamental  principle.  And 
concerning  the  case  under  consideration  there  is  no  doubt  as  to  whether 
the  steamer  Thalia  is  maritime  or  land  property. 

(8)  The  advocate  argues  that  there  are  differences  between  the 
land  and  water  surfaces  in  public  and  private  laws,  but  he  does  not 
explain  in  what  manner  these  differences  affect  the  validity  or  invalidity 
of  captures.  Admitting  such  differences,  there  is  no  reason  why  cap 
tures  freely  made  even  at  sea,  where  the  territorial  right  is  rather  weak, 
should  be  restricted  on  land,  where  such  right  is  stronger.  Moreover, 
there  are  many  cases  in  which  a  section  of  water  surface  is  possessed 
and  used  by  private  persons  to  the  exclusion  of  others,  for  instance, 
water  surface  adjoining  a  pier,  quay,  etc.  A  dock  is  another  example, 
and  the  procurator  cannot  agree  with  the  advocate  in  his  argument 
that  the  presence  or  absence  of  water  has  different  effect. 

(9)  The  advocate  tries  to  show  the  capture  of  the  vessel  under 
consideration  unlawful  by  using  a  new  phrase,  "  capture  on  land."  But 
if  the  meaning  of  the  word  "  land  "  is  as  the  advocate  understands  it 
then  captures  on  land  are  not  necessarily  unlawful.  Captures  on  land 
are  not  commonly  made,  because  cargo,  and  even  vessels,  when  they 
are  taken  from  the  sea  and  carried  inland,  in  most  cases  will  change 
their  character  from  maritime  property  to  goods  not  liable  to  capture 
under  International  Law.t  But  in  the  case  of  a  vessel  in  dock,  or  of  a 
vessel  wilfully  hauled  on  shore  by  the  owner  to  escape  capture,  such 
vessel  does  not  lose  its  character  of  maritime  property  on  that  account 
and  consequently  is  liable  to  capture.  If  all  captures  must  be  given 
up  within  the  beach  line,  under  any  circumstances,  then  an  insular 
empire,  obliged  to  attack  with  its  naval  forces  the  enemy's  coast,  would 
suffer  great  disadvantages  from  such  an  unlawful  restriction.  In  a 
word,  the  capture  of  the  vessel  under  consideration  accords  with  the 
spirit  of  our  Rules  Governing  Captures  at  Sea,  which  do  not  positively 
define  the  limits  within  which  captures  are  authorised;  and  the  decision 
of  the  Yokosuka  Prize  Court  which  discusses  whether  the  vessel  is 
maritime  property  or  not,  but  does  not  take  any  notice  of  the  place 
where  it  was  found,  is  perfectly  right. 

(10)  The  advocate  argues  that  the  vessel  is  cargo  brought  on  board 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  617 

the  steamship  Progress  and  landed  at  Hakodate.  But  in  the  record  of 
the  examination  of  T.  Midsuno,  an  officer  of  the  Hakodate  Dockyard 
Company,  it  is  stated,  "  I  do  not  know  how  the  Thalia  was  brought  to 
Hakodate,  but  when  she  was  brought  to  the  dock  she  was  afloat." 
And  there  is  evidence  that  the  owner  of  the  steamer's  agent  at  Hako- 
date treated  her  as  a  vessel.  Therefore  she  cannot  be  considered  the 
same  as  lumber  floating  on  the  water.  Were  it  admitted  that  there 
was  a  time  when  she  was  a  property  on  land,  she  regained  her  natural 
character  before  she  was  taken  into  the  dock.  As  to  the  lack  of  flags, 
ship's  papers,  etc.,  it  does  not  alter  the  character  of  vessel  as  maritime 
property.  On  the  other  hand,  such  a  lack  is  in  many  cases  a  cause 
of  capture. 

The  decision  of  this  Court  is  explained  as  follows: 

I.  The  advocate  says  that  the  original  decision  stated  that  a  ves- 
sel's lying  in  a  dock,  etc.,  being  her  normal  condition,  she  does  not 
lose  her  character  of  property  afloat  if  she  lies  by  chance  on  land;  and 
the  Court,  without  taking  into  consideration  the  place  in  which  cap- 
tures are  authorised,  but  taking  only  her  character  as  a  vessel  as  the 
criterion,  condemned  the  Thalia.  Therefore,  the  advocate  says,  the  de- 
cision is  contrary  to  the  fundamental  principle  that  captures  may  be 
made  only  in  territorial  waters  and  on  the  high  seas,  and  is  unlawful 
in  the  following  particulars: 

1.  The  capture  under  consideration,  says  the  advocate,  is  contrary 
to  the  Japanese  Rules  Governing  Captures  at  Sea.  But  Art.  II.  of  the 
Japanese  Rules  Governing  Captures  at  Sea,  viz.,  "  No  visit,  search,  or 
capture  shall  be  made  in  neutral  waters  nor  in  waters  clearly  placed 
by  treaty  stipulations  outside  the  zone  of  hostile  operations,"  is  noth- 
ing more  than  an  instruction  that  Japanese  men-of-war  shall  never 
make  visit,  search,  or  capture  in  neutral  waters  nor  in  waters  clearly 
placed  by  treaty  stipulations  outside  the  zone  of  hostile  operations. 
And  there  is  no  dispute  as  to  the  fact  that  the  capture  of  the  vessel 
under  consideration  was  not  made  in  the  territorial  waters  of  a  neutral 
nor  in  waters  clearly  placed  by  treaty  stipulations  outside  the  zone 
of  hostile  operations,  it  is  not  contrary  to  our  Rules  Governing  Captures 
at  Sea. 

2.  The  capture  under  consideration,  says  the  advocate,  is  in  vio- 
lation of  The  Hague  Treaty,  promulgated  on  the  21st  of  the  11th  month 
of  the  37th  year  of  Meiji.  But  as  that  treaty  is  an  agreement  with 
respect  to  the  laws  and  customs  of  war  on  land,  and  not  an  agreement 
with  respect  to  rules  and  usage  of  maritime  war,  the  protest  of  the 
advocate  that  the  capture  under  consideration  is  a  violation  of  The 
Hague  Treaty  is  irrelevant. 

3.  The  capture  under  consideration,  the  advocate  argues,  is  in  vio- 


618  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

lation  of  the  rules  of  International  Law,  and  as  the  reasons  of  his 
agreement,  he  states: 

(a)  Private  property  on  land  is  inviolable  under  International  Law, 
and  as  the  vessel  was  on  land,  by  the  side  of  a  dock,  her  capture  was 
unlawful. 

(&)  The  opinions  of  the  majority  of  scholars  concerning  the  place 
where  captures  are  authorised  are  as  follows:  Some  say  captures  may 
be  made  on  the  sea;  some  say  in  the  territorial  waters  of  belligerents 
and  on  the  high  seas;  some  say  that  the  subject  of  capture  is  the 
enemy's  property  afloat;  and  the  resolution  of  the  Institute  of  Inter- 
national Law  of  1882  is  that  captures  at  sea  shall  be  restricted  to 
water  surface.  Thus  the  capture  of  the  vessel  under  consideration,  says 
the  advocate,  is  contrary  to  theoretical  opinions. 

(c)  The  capture  of  the  vessel  under  consideration  does  not  accord 
with  the  principle  which  authorises  captures  at  sea. 

(d)  As  the  agents  of  war  are  states,  the  fundamental  principle 
must  be  the  inviolability  of  private  property.  The  capture  at  sea  of 
private  property  is  thus  an  exception;  and  in  case  there  is  doubt  whether 
certain  goods  are  maritime  property  or  property  on  land,  such  goods 
should  be  considered  as  property  on  land,  in  accordance  with  the  gen- 
eral rule  that  exceptions  shall  be  taken  in  the  narrowest  sense.  There- 
fore, the  advocate  says,  the  vessel  under  consideration  ought  to  be 
considered  property  on  land,  and  she  comes  under  the  principle  of  the 
inviolability  of  private  property. 

(e)  Docks  and  the  land  in  their  neighbourhood  are  quite  different 
from  the  sea  in  their  character,  and,  therefore,  says  the  advocate,  cap- 
tures in  them  are  unlawful. 

if)  Even  if  a  vessel  in  a  dock  and  afloat  in  port  are  to  be  con- 
sidered the  same,  the  capture  of  the  vessel  under  consideration  was 
unlawful,  as  it  was  made  on  land  in  the  neighbourhood  of  a  dock. 

(a)  Putting  a  vessel  in  a  dock  or  on  the  work-ground  of  the  dock- 
yard for  the  necessity  of  making  repairs,  is  nothing  more  than  a  tem- 
porary avoidance  of  water  during  the  work  with  the  object  of  restoring 
her  to  her  proper  efficiency.  In  such  case  it  must  be  said  that  the  right 
of  capture  may  be  enforced  upon  the  vessel,  even  if  the  place  where  she 
lies  is  not  covered  with  water.  The  protest  of  the  advocate  that  the 
capture  of  the  vessel  under  consideration  was  unlawful,  as  it  was  made 
on  land,  has,  therefore,  no  ground. 

(b)  The  normal  condition  of  a  vessel  is  floating  on  the  surface  of 
the  water.  Thus,  in  discussing  the  places  of  capture,  scholars  use 
phrases,  "  at  sea,"  "  on  the  high  seas  and  in  the  territorial  waters  of 
neutral  countries,"  "  property  afloat,"  etc.  Moreover,  the  resolution  of 
the  Institute  of  International  Law  at  Turin,  that  the  right  of  capture 


CHAP.  II.,  SECT.  I.]  RUSSIAN   VESSELS.  619 

shall  not  be  exercised  except  in  the  territorial  waters  of  belligerent 
states  and  on  the  open  sea,  supposes  ordinary  cases;  and  a  vessel  lying 
in  a  dock  or  on  the  work-ground  of  a  dockyard,  as  the  one  under  con- 
sideration, must  be  considered,  like  a  vessel  temporarily  hauled  on  the 
beach  for  preservation  or  safe  keeping,  similar  to  one  floating  on  the 
water;  consequently  the  capture  under  consideration  was  not  contrary 
to  the  opinion  of  scholars. 

(c)  The  vessel  was  lying  on  the  work-ground  of  a  dockyard,  but 
as  she  was  an  enemy  vessel  capable  of  resuming  her  seagoing  ability, 
her  capture  was  not  contrary  to  the  principle  of  International  Law 
which  authorises  captures  at  sea. 

(d)  The  subject  of  the  capture  under  consideration  was  a  vessel 
lying  temporarily  on  the  work-ground  of  a  dockyard  for  repair.  To 
this  fact  there  is  no  dispute.  There  is  no  room  for  doubt  whether  it 
was  property  on  land  or  maritime  property,  and  consequently  no  ex- 
planations nor  questions,  as  stated  by  the  advocate,  arise. 

Concerning  (e)  and  (f),  it  is  clear  from  the  explanation  given  in 
connection  with  (a)  that  the  arguments  of  the  advocate  have  no  ground, 
and  consequently  no  answer  is  required. 

In  II.  the  advocate  argues  that  the  vessel  under  consideration  was 
brought  to  Hakodate  for  repair  on  board  another  steamer,  and  while 
she  remains  on  land  with  that  object  she  is  cargo  landed.  Moreover, 
at  the  time  of  capture  not  only  was  she  in  a  state  incapacitated  for 
voyage,  the  repairs  not  having  been  finished,  but  she  lacked  instruments 
of  navigation,  crew,  etc.  Therefore,  the  advocate  says,  she  ought  to  be 
released  as  goods  on  land  lying  in  the  neighbourhood  of  a  dock. 
But  from  the  power  of  attorney  of  the  petitioner,  from  the  testimony 
given  by  K.  Nakada,  tide-waiter  of  the  Hakodate  Custom  House,  and 
T.  Midsuno,  officer  of  the  Hakodate  Dockyard  Company,  from  the  report 
of  C.  Sakakiwara,  Councillor  of  the  Yokosuka  Prize  Court,  etc.,  it  is 
an  undisputed  fact  that  the  Thalia  is  a  vessel  of  Russian  nationality. 
It  is  also  an  undisputed  fact  that  the  Hakodate  Dockyard  Company 
had  received  orders  to  repair  her  as  a  vessel.  Therefore  it  cannot  be 
said  that  she  was  not  a  vessel  because  of  the  single  fact  of  her  having 
been  temporarily  on  board  another  vessel  in  order  to  be  brought  to 
Hakodate.  And  as  she  had  the  form  of  a  vessel  at  the  time  of  her 
capture,  even  if  she  was  incapacitated  for  voyage,  her  repairs  not  being 
completed,  that  has  no  effect  upon  the  validity  of  the  capture.  But 
from  the  report  of  the  prize  officer,  her  incapacity  for  voyage  cannot 
be  inferred,  and  T.  Midsuno,  officer  of  the  Hakodate  Dockyard  Com- 
pany, testifies  that  her  repairs  were  completed.  It  cannot,  therefore,  be 
said  that  she  was  incapacitated  for  voyage.  Again,  it  may  be  true  that 
at  the  time  of  capture  she  had  no  instruments  of  navigation,  no  crew, 


620  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

etc.,  but  there  is  no  reason  that  she  should  lose  her  character  of  a 
vessel  on  that  account.  The  decision  of  the  Yokosuka  Prize  Court, 
given  upon  her  as  a  vessel,  was  therefore  right,  and  was  not  a  perversion 
of  facts.    The  protest  is,  therefore,  groundless  on  this  point  also. 

The  decision  of  this  Court  is  as  follows: 

This  protest  is  hereby  rejected. 

Given  this  9th  day  of  the  5th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 


Sect  II.  Vessels  That  Assisted  Hostile  Operations  of  the 
Enemy. 

Case.     The  Aryol. 

The  Aryol  was  a  hospital  ship  of  Kussia,  but  she  was  cap- 
tured by  the  Japanese  Navy  for  the  most  indisputable  reasons 
from  the  point  of  view  of  International  Law.  This  will  be 
one  of  the  most  interesting  and  novel  cases  added  to  former 
precedents. 

Decision  of  the  Sasebo  Prize  Court. 

Published  in  the  Official  Gazette,  Aug.   1,  1905. 
The   following  decision  was   given  on  the   25th   of  the   7th   month 
in  the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court  in  the  prize  case 
of  the  Russian  Red  Cross  Society  Hospital  ship  Aryol. 

Decision. 
In  the  prize  case  of  the  Aryol,  the  hospital  ship  of  the  Russian  Red 
Cross  Society,  the  Court  has  examined  the  opinions  given  in  writing 
by  the  Public  Procurators,  C.  Minakami  and  S.  Jamamoto,  and  gives 
the  following  decision: 

Text  of  the  Decision. 
The  hospital  ship  Aryol  shall  be  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 
The  Aryol,  the  hospital  ship  of  this  case,  is  a  steamer  belonging 
to  the  Russian  Volunteer  Fleet  and  engaged  in  transportation  of  pas- 
sengers and  cargo  under  the  Russian  merchant  flag,  making  Odessa  her 
habitual  home  port.  On  the  outbreak  of  the  Russo-Japanese  War,  she 
was  chartered  by  the  Russian  Red  Cross  Society  for  use  as  a  hospital 
ship,  on  the  29th  of  the  6th  month  in  the  37th  year  of  Meiji.    The  Rus- 


CHAP.  II.,  SECT.  II.]         ENEMY   VESSELS.  621 

sian  Government  made  request  to  the  Japanese  Government  through  the 
French  Minister  in  Japan  that  the  exemptions  stipulated  in  Arts.  I. 
to  V.  of  The  Hague  Convention  of  July  29th,  1899,  for  the  adaptation 
to  maritime  warfare  of  the  principles  of  the  Geneva  Convention  of 
August  22nd,  1864,  be  allowed  to  the  said  hospital  ship  Aryol.  As 
the  above  request  was  agreed  to  by  the  Japanese  Government,  she  was 
equipped  as  a  hospital  ship  at  Toulon,  France,  and  having  obtained 
the  certificate  of  the  chief  naval  expert,  the  superintendent  of  the 
Forges  et  Chantiers  at  La  Seyne,  France,  and  the  commission  of  the 
Russian  Government,  she  was  attached  to  the  Second  Pacific  Squadron 
of  Russia  and  joined  it  at  Tangier,  in  French  territory  in  Africa.  In 
the  course  of  her  eastward  voyage  with  the  said  squadron,  she  pur- 
sued and  overtook  the  Malia,  a  steamer  attached  to  the  said  squadron, 
on  the  21st  of  November,  1904,  by  order  of  the  Commander-in-Chief 
of  the  said  squadron  and  communicated  to  the  above  steamer,  the  com- 
mand that  the  latter  should  keep  within  a  signal  distance.  On  the 
21st  of  the  5th  month  in  the  38th  year  of  Meiji,  she  received  on  board, 
by  order  of  the  Commander-in-Chief  of  the  said  squadron,  Alex  Stewart, 
master  of  the  British  steamship  Oldhamia,  which  had  been  captured 
by  the  Aleg,  a  warship  of  the  said  squadron,  and  three  others,  with 
the  object  of  transporting  them  to  Vladivostock,  notwithstanding  their 
being  in  good  health.  She  was  also  instructed  at  Capetown  or  in  its 
neighbourhood  by  a  staff  officer  of  the  said  squadron,  to  purchase 
10,000  feet  of  conducting  wire  (2  millimetres  in  diameter)  and  1000 
feet  of  conducting  wire  ( 1  millimetre  in  diameter ) ,  both  of  good  insula- 
tion. Moreover,  when  the  Russian  Second  and  Third  Squadrons  pro- 
ceeded towards  Tsushima  Channel  in  two  or  three  columns,  this  ship 
together  with  the  other  hospital  ship,  the  Kostroma,  took  positions  on 
either  side  of  the  leading  warships  of  the  said  squadrons,  forming  a 
triangle  with  the  foremost  men-of-war.  She  was  ordered  to  stop  by 
the  Japanese  man-of-war  Sado  Maru  when  10  nautical  miles  west  of 
Okino  Shima,  at  3.30  p.m.  on  the  27th  of  the  5th  month  of  the  38th 
year  of  Meiji,  while  the  battle  was  going  on  between  the  aforesaid 
squadron  and  the  Japanese  Combined  Fleet,  near  Okino  Shima,  and 
was  taken  to  Miura  Bay  of  Tsushima  province,  where  she  was  cap- 
tured as  having  assisted  warlike  operations. 

The  aforesaid  facts  are  proved  by  the  written  statement  of  Lieu- 
tenant Commander  K.  Haji,  who  acted  for  the  Captain  of  the  Japa- 
nese man-of-war  Sado  Maru,  by  the  commission  of  the  Russian  Min- 
ister Plenipotentiary  in  France,  the  certificate  of  the  Chief  Naval 
Expert,  the  superintendent  of  the  Forges  et  Chantiers,  at  La  Seyne, 
France,  by  the  communication  from  the  French  Minister  Plenipoten- 
tiary in  Japan  to  the  Japanese  Minister  for  Foreign  Affairs,  by  the 


622  NEW   CASES   ON   PRIZE  LAW.  [PART  V. 

affidavits  of  Jacob  Constantinovitch,  Lafmatov,  master,  Alexander 
Bayelmann,  first  mate,  Jacob  Mulitansvski,  Chief  Surgeon,  and  Wari- 
tel  Ostensaken,  Chief  Treasurer,  all  of  the  steamship  Aryol,  by  the 
certificate  of  the  ship's  tonnage,  the  ship's  log-book,  the  affidavit  of 
Alex  Stewart,  the  master  of  the  steamship  Oldhamia,  and  the  certifi- 
cate produced  by  the  master  and  three  others  of  the  same  ship. 

The  main  point  of  the  opinion  of  the  Public  Procurator  is  that  as 
this  hospital  ship  was  evidently  employed  by  the  enemy  for  military 
purposes  she  should  be  confiscated,  together  with  her  accessories. 

After  due  consideration  the  Court  concludes  as  follows: 

A  hospital  ship  can  enjoy  the  privilege  of  inviolability,  only  when 
she  fulfils  certain  conditions  and  when  she  is  engaged  solely  in  the 
humane  work  of  relieving  the  sick  and  wounded.  That  she  is  liable 
to  capture,  should  she  be  used  for  military  purposes  by  the  enemy, 
is  not  only  universally  admitted  by  International  Law,  but  is  clearly 
shown  in  the  stipulations  of  The  Hague  Convention  for  the  adaptation 
to  maritime  warfare,  of  the  principles  of  the  Geneva  Conventon.  Al- 
though this  hospital  ship  had  been  lawfully  equipped  and  due  notifica- 
tion concerning  her  had  been  given  by  the  Russian  Government  to  the 
Japanese  Government,  yet  her  act  of  communicating  the  orders  of 
the  Commander-in-Chief  of  the  Russian  Pacific  Second  Squadron  to 
other  vessels  during  her  eastward  voyage  with  the  said  squadron,  and 
her  attempt  to  transport  non-invalids,  the  master  and  three  others  of 
British  steamship  captured  by  the  said  squadron  to  Vladivostock, 
which  is  a  naval  port  of  the  enemy's  country,  are  evidently  acts  in 
aid  of  the  warlike  operations  of  the  enemy.  Moreover,  when  the  fact 
that  she  was  instructed  by  the  said  squadron  to  purchase  munitions 
of  war  and  the  fact  that  she  was  navigating  in  the  position  usually 
occupied  by  a  reconnoitring  ship,  are  taken  in  consideration,  it  is 
quite  reasonable  to  assume  that  this  hospital  ship  has  been  constantly 
employed  for  military  purposes  on  behalf  of  the  enemy's  squadron. 
Therefore,  this  hospital  ship  is  not  entitled  to  the  privilege  stipulated 
in  The  Hague  Convention  or  the  adaptation  to  maritime  warfare  of 
the  principles  of  the  Geneva  Convention,  and  she  may  lawfully  be  con- 
fiscated according  to  International  Law.  As  no  action  relating  to 
this  case  has  been  instituted  within  the  period  fixed  and  advertised 
by  this  Court,  the  decision  is  given  as  in  the  text  at  the  request  of 
the  Public  Procurators,  dispensing  with  the  procedure  of  trial,  accord- 
ing to  the  last  clause  of  Art.  XVI.  of  the  Prize  Court  Regulations. 

Given  on  the  25th  of  the  7th  month  in  the  38th  year  of  Meiji,  at 
the  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


CHAP.  II.,  SECT.  II.]         ENEMY  VESSELS.  623 

Decision  of  the  Sasebo  Prize  Court  on  the  Cargo  of  the  Aryol. 

Published  in  the  Official  Gazette,  Tokyo,  on  August,  1905. 
The  following  decision  was  given  on  the  31st  of  the  7th  month  in 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court  in  the  case  of  the 
money  belonging  to  the  Russian  Red  Cross  Society  hospital  ship  Aryol. 

Decision. 

In  the  case  of  the  money  belonging  to  the  Aryol,  hospital  ship  of  the 
Russian  Red  Cross  Society,  the  decision  is  given  as  follows: 
Text  of  the  Decision. 

Currency  to  the  amount  of  54,560  francs  83  centimes  (exchanged 
into  French  currency)  and  Russian  currency  amounting  to  2486  rubles 
44  kopecks,  both  belonging  to  the  hospital  ship  Aryol,  are  hereby  con- 
fiscated. 

Facts  and  the  Grounds  of  the  Decision. 

This  money  was  supplied  by  the  Russian  Red  Cross  Society  to  the 
hospital  ship  Aryol  for  the  payment  of  salaries  of  the  officials  of  that 
society  and  all  other  expenses  of  the  ship.  On  the  outbreak  of  the 
Russo-Japanese  War,  the  said  hospital  ship  was  attached  to  the  Sec- 
ond Pacific  Squadron  of  Russia,  and  during  her  eastward  voyage  with 
the  said  squadron,  she  pursued  and  overtook  the  Malta,  a  steamer 
attached  to  the  said  squadron,  on  the  21st  of  November,  1904,  by  order 
of  the  Commander-in-Chief  of  the  said  squadron  and  communicated  to 
the  above  steamer  the  command  that  the  latter  should  not  proceed 
beyond  a  signal  distance.  On  the  21st  of  the  5th  month  in  the  38th 
year  of  Meiji,  she  received  on  board  by  order  of  the  Commander-in- 
Chief  of  the  said  squadron,  Alex  Stewart,  master,  and  three  others 
of  the  British  steamer  Oldhamia,  which  had  been  captured  by  the  Oleg, 
a  warship  of  the  said  squadron,  with  the  object  of  transporting  them 
to  Vladivostock,  notwithstanding  their  being  in  good  health.  She  was 
also  instructed  in  the  vicinity  of  Capetown  by  a  staff  officer  of  the 
said  squadron  to  purchase  10,000  feet  of  conducting  wire  of  good  in- 
sulation of  2  millimetres  in  diameter  and  1000  feet  of  the  same  of 
1  millimetre.  Moreover,  when  the  Russian  Second  and  Third  Squadrons 
proceeded  toward  Tsushima  Channel  in  two  or  three  columns,  this  ship 
and  the  other  hospital  ship,  the  Kostroma,  took  respective  positions 
on  each  side  of  the  leading  warships,  forming  a  triangle  with  the 
foremost  warships.  For  the  aforesaid  acts  she  was  captured  by  the 
Japanese  man-of-war  Sado  Maru,  at  Miura  Bay  of  Tsushima,  on 
the  27th  of  the  5th  month  in  the  38th  year  of  Meiji,  as  having  assisted 
the  enemy's  warlike  operations,  and  the  money  in  question  was  also  cap- 
tured at  the  same  time. 


624  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

The  aforesaid  facts  are  proved  by  the  written  statement  of  Lieu- 
tenant Commander  K.  Haji,  who  acted  for  the  captain  of  the  Japa- 
nese man-of-war  Sado  Maru,  by  the  affidavits  of  Jacob  Constantino- 
vitch  Laf matov  ( ? ) ,  master,  Alexander  Bayelmann,  first  mate,  Jacob 
Mulitanovski,  chief  surgeon,  and  Waritel  Ostensaken,  chief  treasurer, 
of  the  steamship  Aryol,  by  the  ship's  log-book,  the  account  of  money 
paid  and  received  which  has  been  produced  by  the  chief  surgeon,  by 
the  affidavit  of  Alex  Stewart,  master  of  the  steamship  Oldhamia,  by 
the  certificates  produced  by  the  master  and  three  others  of  the  same 
ship. 

The  main  point  of  the  Public  Procurator's  opinion  is  that  as  the 
Russian  Red  Cross  Society's  hospital  ship  Aryol  was  evidently  em- 
ployed by  the  enemy  for  military  purposes,  the  money  found  in  the 
ship  to  defray  her  expenses  should  be  confiscated,  as  her  accessories, 
together  with  the  said  hospital  ship. 

After  due  consideration  the   Court  concludes  as   follows: 

When  a  hospital  ship  loses  her  right  to  enjoy  the  privilege  of  in- 
violability and  is  captured,  all  her  accessories  also  become  liable  to 
confiscation.  In  the  present  case,  the  hospital  ship  Aryol  of  the  Red 
Cross  Society  of  Russia,  delivered  the  orders  of  the  Commander-in- 
Chief  of  the  Russian  Pacific  Second  Squadron  to  the  steamers  dur- 
ing her  eastward  voyage  with  the  said  squadron,  and  she  also  re- 
ceived on  board  non-invalids,  the  master  and  three  others  of  a  British 
steamer  which  had  been  captured  by  the  said  squadron  and  attempted 
to  transport  them  to  Vladivostock,  an  enemy's  naval  port.  These  acts 
are  evidently  acts  in  aid  of  the  warlike  operations  of  the  enemy. 
Besides,  when  the  fact  that  she  was  instructed  by  the  said  squadron 
to  purchase  munitions  of  war  and  the  fact  that  she  was  navigating 
in  a  position  usually  occupied  by  a  reconnoitring  ship,  are  taken  into 
consideration,  it  is  quite  reasonable  to  assume  that  the  said  hospital 
ship  had  constantly  been  employed  for  military  purposes  on  behalf 
of  the  enemy's  squadron,  and  therefore  she  is  not  entitled  to  the 
privilege  stipulated  in  The  Hague  Convention  for  the  adaptation  to 
maritime  warfare  of  the  principles  of  the  Geneva  Convention.  The 
money  in  question,  being  the  administering  fund  of  the  said  hospital 
ship,  is  her  indispensable  accessory,  like  the  medical  apparatus,  sani- 
tary materials,  provisions,  etc.,  so  it  should  lawfully  be  confiscated 
together  with  the  ship. 

With  regard  to  this  case,  Baron  Waritel  Ostensaken  (?),  Second 
Commissioner  of  the  Russian  Red  Cross  Society  with  full  authority 
within  the  ship  and  chief  treasurer,  filed  a  petition  requesting  the  re- 
lease of  all  the  mony,  but  that  petition  has  been  withdrawn  after  the 
oral  proceedings  had  been  closed. 


CHAP.  II.,  SECT.  III.]        ENEMY   VESSELS.  625 

For  the  aforesaid  reasons,  the  decision  is  given  as  stated  in  the  text. 
Given  this  31st  day  of  the  7th  month  in  the  38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  S.  Yamamoto,  taking 
part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


Sect.  III.     Vessels  Employed  By  the  Hostile  Government 
or  Navigating  With  the  Enemy's  Licence. 

Case  I.     The   Australia. 
Published  in  the  Official  Gazette,  Tokyo,  on  Feb.  27,  1906. 

Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  by  the  Yokosuka  Prize  Court,  on 
the  4th  of  the  11th  month  of  the  39th  year  of  Meiji,  in  the  case  of 
the  American  steamship  Australia  and  cargo. 

No.  XXI. 

Decision. 

Petitioners — The  Oceanic  Steamship  Company,  San  Fran- 
cisco,  Cal.,  U.   S.   A. 

Representative — James  Lenny    (  ?),  Master  of  the  steam- 
ship Australia. 

Petitioner — Lloyd's,  London,  England. 

Representative — A.    G.    Morey    Weals,    member   of    Comes 
&  Co.,  50,  Yamashita  Cho,  Yokohama. 

Attorney — H.  Sato,  Counsellor  at  Law,  40,  3-chome,  Hon- 
cho,  Yokohama. 

In  the  case  of  the  Australia,  a  steamship  of  the  United  States  of 
America,  the  following  decision  is  given  after  due  examination. 

Text   of   Decision. 
The  Australia,  a  steamship  of  the  United  States  of  America,  and 
her  cargo    (about  1400  sacks  of  flour,  about  200  cases  of  other  provi- 
sions, textiles  and  sundries)    are  hereby  confiscated. 

Facts   and   Grounds   for   the   Decision. 

The    steamship   Australia    is    a    merchant   ship,    registered    at    San 

Francisco,  the  United  States  of  America,  and  flying  the  American  flag. 

She  was  chartered  on  April    10th,    1905,  by  the  Russian  Government 

through    the    Kamtchatka    Commercial    and    the    Industrial    Company, 


626  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Russia,  for  the  term  of  about  four  months,  to  supply  goods,  both  pub- 
lic and  private,  at  several  ports  in  the  Okhotsk  Sea  and  the  Behring 
Sea,  during  the  year  1905.  The  Russian  Government  appointed  Nicolai 
Alexandrovitch  Grebnicky,  Councillor  of  the  Home  Department,  its 
agent,  with  full  powers.  Being  ordered  to  take  charge  of  the  business 
of  the  supplies,  and  all  correspondence,  both  public  and  private,  on 
the  Far  Eastern  Coasts,  and  also  to  inspect  affairs  in  several  ports 
of  these  coasts,  the  said  officer  purchased,  at  San  Francisco,  a  large 
quantity  of  provisions,  ammunition,  lead  bars,  lead  lumps,  textiles  and 
other  sundries,  and  loaded  them  in  this  ship.  He,  himself,  embarked 
in  the  ship  and  left  San  Francisco  on  the  25th  of  the  5th  month  of 
this  year  (1905).  In  obedience  to  the  order  of  the  above  officer,  this 
ship  touched  at  several  ports  in  the  Okhotsk  Sea,  visiting  Petropav- 
lovsk  and  the  Kommandorski  Islands.  After  distributing  to  those 
ports  a  greater  part  of  her  cargo  and  discharging  the  correspondence 
business,  she  returned  to  Petropavlovsk  and  was  captured  at  that  port 
by  the  Japanese  man-of-war  Suma,  on  the  13th  of  the  8th  month  (13 
Aug.,  1906)  while  preparing  to  sail  again  for  the  ports  in  the  Okhotsk 
Sea  in  order  to  finish  her  business  there.  The  goods  found  in  the 
ship  at  the  time  of  her  capture,  belonging  to  the  Russian  Government, 
are  the  enemy  goods  shipped  by  the  Kamtchatka  Commercial  and  In- 
dustrial Company  at  Petropavlovsk  and  consigned  to  ports  in  the 
Okhotsk  Sea. 

The  above  facts  are  proved  by  the  written  statement  of  Lieutenant 
N.  Ominato,  representing  the  captain  of  the  Japanese  man-of-war 
Suma,  by  the  affidavits  of  the  said  officer,  of  James  Lenny,  the  master 
of  this  ship,  of  the  passengers  Nicolai  Alexandrovitch  Grebnicky, 
Councillor  of  th  Russian  Home  Department,  Anns  Kander  (  ?)  and 
Peter  Upmann  (  ? ) ,  employees  of  the  Kamtchatka  Commercial  and  In- 
dustrial Company,  and  of  Robert  H.  Cole  (  ? ) ,  first  mate  of  this  ship ; 
by  an  extract  from  the  affidavit  of  Grebnicky,  taken  in  the  case  of  the 
steamship  Montara;  by  a  copy  of  the  written  order  given  by  the  Rus- 
sian Government  to  the  officer  charged  with  the  business  of  sup- 
plies to  the  ports  in  the  Okhotsk  Sea  during  the  year  of  1905;  and 
by  the  certificate  of  the  ship's  na'tionality,  the  charter  party,  the  offi- 
cial log-book,  the  ship's  log-book,  the  manifest  and  the  list  of  the 
existing  goods. 

The  main  points  of  the  petition  are: 

(1)  The  steamship  Australia,  being  the  property  of  the  peti- 
tioners, the  Oceanic  Steamship  Company,  is  a  neutral  ship  registered 
at  San  Francisco,  the  home  of  the  company.  During  the  4th  month 
of  this  year,  the  petitioners  let  her  by  charter  to  the  Kamtchatka  Com- 
mercial and  Industrial  Company  for  about  four  months  for  a  voyage  to 


CHAP.  II.,  SECT.  III.]        ENEMY   VESSELS.  627 

Kamtchatka.  The  articles  of  the  charter  were  all  in  accordance  with 
common  usage,  and  no  false,  or  illegal  statement  was  made  in  the 
ship's  papers  while  performing  this  contract.  This  fact  amply  shows 
that  neither  the  owner  nor  the  master  had  any  idea  of  violating  neu- 
trality. When  the  whole  ship  is  chartered,  as  in  this  case,  it  is  the 
common  practice  for  the  representative  of  the  charterer  to  direct  the 
loading  and  unloading  during  the  voyage.  Consequently,  it  was  quite 
natural  that  the  master  did  not  know  that  the  cargo  of  this  ship  con- 
tained some  goods  belonging  to  the  Russian  Government.  Besides,  he 
was  introduced  to  the  Russian  officer  as  a  passenger  taking  advantage 
of  the  voyage,  and  could  not  know  on  what  mission  he  embarked. 
Hence,  the  facts  that  official  goods  were  transported,  and  that  the 
Russian  officer  on  board  was  on  a  mission  to  supply  goods,  should 
not  be  taken  as  grounds  for  inferring  that  the  owner  and  the  master 
of  this  ship  intended  to  place  her  under  the  control  of  the  Russian 
Government,  and  that  she  had  lost  her  neutral  character.  Moreover, 
the  transportation  undertaken  by  this  ship  was  a  commercial  act  of 
the  charterer,  and  it  would  be  a  biased  judgment  to  regard  her  as 
a  government  ship  merely  because  her  cargo  contained  official  goods. 
Such  a  judgment  would  be  unfounded,  unless  it  be  assumed  that  the 
charter  was  a  fiction  and  that  the  real  party  to  the  contract  was  the 
Russian  Government.  The  duty  of  the  Russian  officer  was  only  to 
oversee  the  distribution  of  the  part  of  her  cargo  at  various  places,  and 
his  embarkation  has  no  bearing  on  the  question  whether  or  not  the 
charter  was  fictitious.  Moreover,  considering  the  fact  that  he  was 
sick  in  a  hospital  at  Petropavlovsk,  after  fulfilling  his  mission,  and 
expected  to  make  the  homeward  voyage  in  the  ship  when  she  called 
there  again  after  visiting  one  or  two  other  ports,  it  is  evident  that 
lie  had  no  further  connection  with  this  ship. 

(2)  It  is  the  common  usage  of  merchant  ships  when  entering  a 
foreign  port  to  hoist  the  flag  of  that  state  at  the  foremast;  and  this 
ship's  flying  the  Russian  flag  when  she  entered  Petropavlovsk  was 
nothing  more  than  following  this  usage.  Hence,  so  long  as  she  did 
not  haul  down  the  American  flag  by  which  her  nationality  is  shown, 
she  should  not  be  charged  with  sailing  under  the  Russian  flag. 

(3)  The  transportation  of  provisions  undertaken  by  the  charterer 
had  no  connection  directly  or  indirectly  with  the  war.  The  supply  of 
provisions  in  the  neighbourhood  of  Kamtchatka  was  suspended  at  that 
time,  and  the  people  were  almost  starving.  It  is  admitted  by  inter- 
national usage  that  a  voyage  for  the  welfare  of  mankind,  unconnected 
with  a  war,  exempts  a  ship  even  of  the  enemy's  government  from  cap- 
ture; and  ships  sailing  for  scientific,  philanthropic  or  religious  pur- 
poses enjoy  the  same  exemption.     The  object  of  this  ship  was  to  sup- 


628  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

ply  provisions  to  starving  people — an  act  of  humanity  even  more  than 
ordinary  philanthropy. 

(4)  The  charterer  of  this -ship  had  hitherto  undertaken  the  sup- 
ply of  provisions  in  foreign,  as  well  as  Russian  ships.  Even  admitting 
the  statement  of  Grebnicky  that  trade  of  foreign  ships  was  suspended 
in  the  vicinity  of  the  Konmandorski  Archipelago,  that  was  nothing 
more  than  the  result  of  the  monopoly  of  trade  by  the  Kamtchatka 
Commercial  and  Industrial  Company.  In  other  words,  the  suspension 
was  caused  by  the  special  contract  between  that  company  and  the 
Russian  Government,  and  not  by  the  prohibitive  law  of  Russia.  Hence, 
even  supposing  the  conditions  of  the  special  contract,  or  the  order  to 
the  company  by  the  Russian  Government  to  have  been  modified,  al- 
lowing the  company  to  use  foreign  ships,  a  ship  chartered  by  the 
company,  should  not  be  regarded  as  sailing  under  special  licence  of 
the  Russian  Government.  "Vessels  voyaging  .  .  .  under  license  of  the 
enemy"  of  Art.  VI.  of  the  present  Regulations  Governing  Capture  at 
Sea,  means,  as  was  set  forth  in  the  old  regulations,  vessels  holding 
passports  issued  by  the  enemy's  State  or  sailing  with  charters  of  the 
enemy's  State,  that  is,  vessels  which  obtained  such  licence  themselves. 
Therefore,  to  regard  this  ship  as  under  the  special  licence  of  the  Rus- 
sian Government  not  only  ignores  the  spirit  of  the  Regulations  Govern- 
ing Captures  at  Sea,  but  also  violates  the  precedents  and  usages  of 
International  Law. 

(5)  The  seizure  of  private  property  at  sea  is  a  remnant  of  the 
savage  usage  in  Europe.  With  the  advancement  of  civilisation,  this 
practice  is  now  carried  on  by  States  within  the  limit  necessary  for 
war,  and  not  as  piratical  plundering.  Hence,  captures  should  be  dis- 
continued as  soon  as  peace  is  restored,  and  consequently,  things  cap- 
tured but  not  yet  condemned  by  the  courts,  should  be  released.  The 
correctness  of  the  above  view  is  shown  by  precedents  in  the  French- 
Mexican  War  of  1856  (may  be  a  mistake  for  1865,  in  the  Austrian- 
French  and  Piedmontese  War  of  1859,  in  the  Danish-Prussian  and 
Austrian  War  of  1864,  and  in  the  last  stage  of  Franco-Prussian  War. 
The  manner  of  dealing  with  captured  things  belonging  to  either  bel- 
ligerent state  may  be  settled  by  treaty  between  them,  or  by  the  prin- 
ciple of  reciprocity;  but  neutral  ships  and  cargoes  should  not  be  sub- 
jected to  the  jurisdiction  of  belligerent  prize  courts  after  peace  has 
been  restored.     This  ship  and  cargo  should  therefore  be  released. 

After  due  consideration,  the  Court  concludes  as  follows: 
It  appears  from  the  order  of  the  Russian  Government  to  the  officer 
acting  as   its   agent,   and  from   the  affidavit  of  that  officer,  that  the 
Russian  Government  used  annually  to  send  provisions  and  other  sun- 
dries  to  the   district  coasting  the   Okhotsk    and   the   Bering    Seas   by 


CHAP.  11./ SECT.  III.]        ENEMY   VESSELS.  629 

ships  of  the  Volunteer  Fleet,  or  ships  chartered  directly  by  the  Gov- 
ernment; and  the  governors  of  those  districts  delivered  official  goods 
to  the  official  depots  in  each  district  and  sold  private  goods  to  mer- 
chants or  the  general  public  through  the  chiefs  of  counties.  But, 
since  the  outbreak  of  the  Russo-Japanese  War,  communication  with 
the  ports  of  this  coast  has  been  suspended,  and  it  has  become  impos- 
sible for  the  governors  to  deliver  the  goods  as  in  times  of  peace.  -So 
the  central  Government  had  to  despatch  this  officer  charged  with  the 
business  of  supplying  goods,  and  this  ship  was  used  in  the  same  man- 
ner as  ships  of  the  Volunteer  Fleet,  or  ships  chartered  directly  by 
the  Government.  Hence,  it  cannot  be  doubted  that  this  ship  was  origi- 
nally employed  by  the  Russian  Government.  Moreover,  she  was  char- 
tered by  the  Russian  Government  through  the  Kamtchatka  Com- 
mercial and  Industrial  Company,  and  was  under  the  control  of 
Grebnicky.  And  it  is  evident  from  the  statement  of  Grebnicky  that  al- 
though she  was  insured  in  London  by  the  Kamtchatka  Commercial 
and  Industrial  Company,  the  premium  was  paid  by  the  Russian  Gov- 
ernment. It  appears  at  first  sight  that  this  ship  was  chartered  by 
the  Kamtchatka  Commercial  and  Industrial  Company  who  had  made 
a  special  contract  with  the  Russian  Government  for  the  transportation 
of  official  goods,  and  that  the  company  used  her  in  their  own  regular 
business;  but  in  reality  she  must  be  regarded  as  employed  by  the 
Russian  Government.  The  petitioners  contend  that  the  owner  and 
the  master  had  no  intention  of  violating  neutrality,  that  they  did  not 
know  that  official  goods  were  transported,  or  that  the  Russian  officer 
on  board  the  ship  was  an  agent  for  distributing  the  goods,  and  that, 
as  the  latter  had  already  completed  his  mission  and  was  sick  in  a 
hospital  at  Petropavlovsk,  he  had  no  further  connection  with  the  ship. 
But  whether  or  not  this  ship  was  employed  by  the  Government  must 
be  judged  by  the  actual  service  she  performed,  and  not  by  the  inten- 
tion of  her  owner  or  master.  Besides,  she  was  captured  before  the 
expiration  of  the  term  of  her  charter  and  when  she  was  preparing  to 
make  a  second  voyage  to  the  coast  of  the  Okhotsk  Sea  in  order  to 
finish  her  business  there.  The  fact  that  the  said  officer  had  landed 
has  no  effect  upon  her  character  as  a  Government  ship.  The  petitioners 
contend  that,  as  the  supplying  of  provisions  in  Kamtchatka  and  its 
neighbourhood  was  suspended  at  that  time  and  the  inhabitants  were 
almost  starving,  the  ship  should  be  exempt  from  confiscation  for  the 
sake  of  humanity.  But  considering  the  order  of  the  Russian  Govern- 
ment, it  cannot  be  said  that  the  object  of  this  voyage  was  rescue  or 
charity.  Moreover,  in  the  copy  of  the  Russian  official  document  seized 
by  the  Japanese  man-of-war,  at  Petropavlovsk,  it  is  mentioned  that 
all  the  villagers  in  these  localities  had  enlisted  in  the  volunteer  corps, 


630  NEW   CASES   ON   PRIZE   LAW.  ■    [PART  V. 

and  that  Grebnicky  came  on  the  29th  of  the  5th  month,  in  the  Rus- 
sian calendar,  carrying  salaries  and  provisions  for  three  months  for 
three  hundred  volunteers.  Besides,  there  is  reason  to  believe  that  this 
ship  supplied  provisions,  etc.,  to  the  troops  and  volunteers  stationed 
in  the  littoral  places  at  which  she  called.  Therefore,  the  above  con- 
tention of  the  petitioners  has  no  ground.  Again,  the  petitioners,  citing 
several  precedents,  contend  that  captures  should  be  absolutely  dis- 
continued as  soon  as  peace  is  restored,  and  consequently,  that  things 
captured  but  not  condemned  by  a  prize  court  should  be  released;  and 
that  neutral  ships  and  cargoes  should  not  be  subjected  to  the  jurisdic- 
tion of  prize  courts  of  belligerent  states,  after  peace  is  restored  and 
that,  therefore,  this  ship  and  cargo  should  be  released.  But  the  pre- 
cedents cited  by  the  petitioners  were  cases  in  which  the  mutual  rela- 
tions of  belligerents  had  been  stipulated  by  special  conventions,  or  in 
which  some  particular  enemy  ships  were  released  by  the  special  ordi- 
nance, and  cannot  be  applied  to  this  case.  The  right  of  capture  ceases 
with  the  restoration  of  peace  but  the  validity  of  capture  already  made 
will  not  be  affected  by  it.  The  distinction  must  be  made  between  the 
act  of  capture  and  the  act  of  judging  whether  or  not  the  capture  was 
reasonable.  Therefore,  a  Prize  Court,  unless  bound  by  a  special  con- 
vention, or  ordinance,  is  entitled  to  continue  the  examination  of  either 
a  neutral  or  an  enemy's  ship,  and  to  give  decision  whether  to  con- 
fiscate or  not,  even  after  the  restoration  of  peace.  The  precedent  of 
the  Yik-sang  in  the  China-Japan  War  of  the  27-28th  year  of  Meiji, 
as  well  as  the  usages  and  theories  of  International  Law  show  the  cor- 
rectness of  the  above  view.  To  sum  up  this  ship,  though  originally 
neutral,  must  be  held  as  an  enemy  ship,  because  she  was  actually 
employed  by  the  Russian  Government.  She  is  not  exempt  from  con- 
fiscation by  International  Law,  and  her  cargo  being  the  property  of 
the  Russian  Government,  or  of  the  enemy  people,  is  subject  to  the 
same  fate  as  the  ship.  For  the  reasons  given  above,  both  this  ship 
and  her  cargo  are  liable  to  confiscation,  and  as  to  the  other  con- 
tentions of  the  petitioners,  the  Court  sees  no  necessity  of  giving  any 
explanation. 

The  decision  is  therefore  given,  as  stated  in  the  text. 

Given  this  4th  day  of  the  11th  month  of  the  38th  year  of  Meiji, 
at  the  Yokosuka  Prize  Court,  S.  Uchida,  Public  Procurator  of  the  Yoko- 
suka  Prize  Court,  taking  part. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 


CHAP.  II.,  SECT.  III.]        ENEMY   VESSELS.  631 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  Feb.  28,  1906. 

The  following  decision  was  given  on  the  13th  day  of  the  2nd  month 
of  the  39th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  case  of 
the  American  steamship  Australia  and  cargo. 

Case  No.  LXXXIX. 

Decision. 

Petitioners — The  Oceanic  Steamship  Company,  San  Fran- 
cisco, the  United  States  of  America. 

Representative — James   Lenny  ( ? ) ,   master   of   the    steam- 
ship Australia. 

Petitioners — Lloyd's,  London,  England. 

Representative — A.    G.   Morey    Weale,    Member   of    Cornes 
&  Co.,  50,  Yamashita  Cho,  Yokohama. 

Attorney — H.  Sato,  Counsellor  at  Law,  40,  3-chome,  Hon- 
cho,  Yokohama. 

In  the  case  of  the  American  steamship  Australia  and  her  cargo, 
captured  by  the  Japanese  man-of-war  Suma,  on  the  13th  of  the  8th 
month  of  the  36th  year  of  Meiji,  at  Petropavlovsk,  Russia,  the  Yoko- 
suka  Prize  Court  gave  decision  on  the  4th  of  the  11th  month  of  the 
36th  year  of  Meiji,  confiscating  the  ship  and  her  cargo  (about  1400 
sacks  of  flour,  about  200  cases  of  other  provision,  textiles  and  sun- 
dries ) .  Whereas  H.  Sato,  attorney  for  James  Lenny,  representative  of 
the  said  petitioner,  the  Oceanic  Steamship  Company,  and  for  A.  G. 
Morey  Weale,  representative  of  the. said  petitioner,  Lloyd's,  has  filed 
an  appeal  against  the  said  decision,  the  case  has  been  examined  and 
the  following  decision  is  given,  K.  Tsuzuki  and  B.  Ishiwatari,  Public 
Procurators  of  the  Higher  Prize  Court,  taking  part. 

The  main  points  and  reasons  of  the  appeal,  stated  by  H.  Sato,  at- 
torney for  the  petitioners  are: 

(Here  the  statement  is  omitted  to  avoid  repetition  of  the  original 
decision. ) 

The  reasons  for  the  decision  by  the  Higher  Prize  Court  are  given 
as  follows: 

The  Russian  Government  used  annually  to  send  provisions  and  other 
sundries  to  the  littoral  provinces  bordering  the  Okhotsk  and  the 
Bering  Seas  in  ships  of  the  Volunteer  Fleet  or  ships  chartered  directly 
by  the  Government,  and  governors  of  those  provinces  delivered  official 
goods  to  the  official  depots,  and  sold  private  goods  to  merchants,  or 
the  general  public  through  the  chiefs  of  counties.     But,  since  the  out- 


632  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

break  of  the  Russo-Japanese  War,  communication  with  the  ports  of 
the  littoral  provinces  has  been  suspended,  so  the  central  Government 
despatched  a  special  agent  for  supplies  in  this  ship.  In  other  words, 
this  ship  was  employed  by  the  Russian  Government.  The  fact  is 
proved  by  the  Russian  Government's  order  to  its  agent,  Grebnicky, 
and  by  that  officer's  affidavit  taken  by  the  councillor  in  charge  of  this 
case  at  the  Yokosuka  Prize  Court.  In  the  first  reason  of  appeal,  the 
appellant  points  out  the  fact  that  this  ship  had  been  chartered  by  the 
Kamtchatka  Commercial  and  Industrial  Company  and  their  represen- 
tative was  on  board  directing  the  disposal  of  the  cargo,  that  Greb- 
nicky, agent  for  supplies,  was  on  board  merely  as  a  passenger,  and 
did  not  control  the  ship,  that  even  admitting  that  she  was  originally 
employed  by  the  Russian  Government,  she  was  entirely  under  the  con- 
trol of  the  charterers  at  the  time  of  capture,  that  although  more  than 
half  the  cargo  belonged  to  the  Russian  Government,  the  charterers 
had  also  loaded  her  with  their  own  goods  and  carried  on  business  on 
their  own  account,  with  their  representative  embarked,  and  the  ap- 
pellant contends  that  this  ship  was  not  employed  by  the  Russian  Gov- 
ernment. But  the  contents  of  the  above  mentioned  order,  the  state- 
ment in  Grebnicky's  affidavit,  "  the  Government  chartered  this  ship 
through  the  company,  so  the  control  of  her,  the  nomination  of  the  places 
for  distributing  the  goods  and  the  direction  of  the  distribution  are 
all  in  my  power,"  and  the  fact  that  at  the  time  of  capture  Grebnicky 
being  in  hospital  and  the  business  of  supplies  not  yet  concluded,  he 
had  intrusted  it  to  the  charterers'  representative,  show  that  the  first 
part  of  the  first  reason  of  appeal  is  groundless.  The  fact  that  the 
charterers  loaded  this  ship  with  their  own  goods,  and  carried  on  their 
own  business  while  she  was  engaged  in  carrying  supplies  for  the 
Russian  Government,  does  not  alter  the  governmental  character  of  this 
ship.  Therefore,  the  latter  part  of  the  first  reason  of  appeal  is  also 
groundless.  In  the  second  reason  of  appeal,  the  appellant  contends 
that  this  supplying  of  provisions  had  no  connection  directly,  or  in- 
directly, with  war,  but  was  philanthropic,  and  so  the  ship  should  be 
exempt  from  capture.  But  an  enemy  ship  is  liable  to  capture  even 
when  not  connected  with  war;  and  as  proved  by  the  above  mentioned 
order  of  the  Russian  Government,  this  ship's  mission  was  not  philan- 
thropic. Moreover,  from  a  copy  of  a  telegram  seized  by  the  Japanese 
man-of-war  Suma,  at  Petropavlovsk,  it  must  be  inferred  that  this  ship 
had  supplied  provisions  to  troops.  Hence,  the  second  reason  of  appeal 
is  groundless.  The  appellant  argues  that  as  the  above  telegram  was 
despatched  on  the  12th  of  the  5th  month,  Russian  calendar,  i.  e.,  the 
date  of  the  ship's  departure  from  San  Francisco,  it  cannot  be  trusted. 
But   in   the   original    Russian    telegram,  the   date   of   despatch   is    not 


CHAP.  II.,  SECT.  III.]        ENEMY    VESSELS.  633 

mentioned,  and  it  contains  the  statement  that  Grebnicky  had  imported 
on  the  29th  of  the  5th  month,  money  and  provisions  sufficient  for 
maintaining  300  volunteers  for  three  months.  It  is  evident,  then,  that 
the  telegram  was  despatched  after  the  29th  of  the  5th  month.  There- 
fore, the  third  reason  of  appeal  is  groundless.  The  fourth  reason  of 
appeal  is  that  things  captured,  but  not  yet  condemned,  should  be  re- 
leased as  soon  as  peace  is  restored.  But  by  the  precedents  of  Inter- 
national Law  a  prize  court  is  entitled  to  examine  prize  cases  and 
give  decision  of  confiscation  even  after  the  restoration  of  peace,  and 
this  Higher  Court  deems  it  reasonable.  Hence,  the  fourth  reason  of 
appeal  is,  also,  groundless.  For  the  above  reasons,  the  original  de- 
cision to  confiscate  this  ship  together  with  her  cargo,  regarding  her 
as  an  enemy's  ship,  is  reasonable. 

The  decision  is  therefore  given  as  follows: 

This  appeal  is  hereby  dismissed. 

Given  this   13th  day  of  the  2nd  month  of  the  39th  year  of  Meiji, 
at  the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 

Case  II.     The  Montara. 

Decision  of  the  Tokosuka  Prize  Court. 

Published  in  the  Official  Gazette,  Tokyo,  on  Feb.  27,  1906. 
The  following  decision  was  given  on  the  4th  day  of  the  11th  month 
of  the  38th  year  of  Meiji,  by  the  Yokosuka  Prize  Court,  in  the  case  of 
the  American  steamship  Montara  and  her  cargo. 

Decision. 
No.  XXII. 

Petitioner — The    Pacific    Coast    Steamship    Company,    San 

Francisco,  The  United  States. 
Representative — Thomas  Riley,  master  of  the  Montara. 
Petitioner — Lloyd's,  London,  England. 
Representative — A.  G.  M.  Weale,  of  Comes  &  Co.,  50  Yama- 

shita  cho,  Yokohama. 
Advocate — H.  Sato,   Counsellor  at  Law,  40  3-chome,  Hon- 

cho,  Yokohama. 

In  the  case  of  the  American  steamship  Montara  and  her  cargo,  trial 
has  been  held  and  the  following  decision  given: 

Text  of  Decision. 
The  American  steamship  Montara  and  her  cargo,  consisting  of  25 
bags  of  leaf  tobacco,  11  cases  of  tobacco,  17  cases  of  sugar,  a  steam 


634  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

launch,  2  small  boats,  some  firewood,  4000  salted  seal  skins,  and  30 
skins  of  Siberian  sable,  red  fox,  otter,  ermine,  and  bear,  are  hereby 
confiscated. 

Facts  and  Grounds  of  Decision. 

The  steamship  Montara  is  the  property  of  the  petitioner,  the  Pacific 
Coast  Steamship  Company,  and  is  a  merchantman  registered  at  San 
Francisco,  flying  the  American  flag.  The  Kamtchatka  Commercial  and 
Industrial  Company,  in  order  to  perform  the  duty  which  it  owed  to 
the  Russian  Government  of  supplying  the  Kommandorski  Islands  and 
vicinity  with  daily  necessaries,  chartered  the  ship  for  about  5  months, 
from  May  1st,  1905,  the  contract  being  made  at  San  Francisco,  on 
March  22nd,  between  the  owners  and  the  company's  agent,  Rosblam  (?) 
Company.  The  ship,  in  pursuance  of  the  charter  party,  took  in  a  cargo 
of  about  200  tons,  consisting  of  provisions,  agricultural  implements, 
sugar,  and  tobacco,  to  be  supplied  to  the  people  of  those  districts,  and 
left  San  Francisco  for  Kamtchatka,  Russia,  on  July  9th,  1905.  She 
called  at  Copper  Island,  Behring  Island,  Petropavlovsk,  and  west  Kamt- 
chatka, and  there  discharged  certain  parts  of  her  cargo  and  took  in 
goods  belonging  to  the  Kamtchatka  Commercial  and  Industrial  Com- 
pany, and  furs  bought  by  the  same  company.  She  then  went  back  to 
Behring  Island,  and  while  unloading  the  remainder  of  the  cargo  at 
Nikolski  Road,  on  the  16th  of  the  8th  month  of  the  38th  year  of  Meiji, 
at  3  p.m.,  she  wras  discovered  by  the  Japanese  man-of-war  Idzumi. 
After  being  visited,  she  was  captured  as  being  in  the  Russian  Govern- 
ment service  and  employed  for  the  transportation  of  contraband  of  war. 
The  Kommandorski  Islands  and  vicinity  were  originally  closed  to  for- 
eign vessels;  but  since  the  outbreak  of  the  Russo-Japanese  war,  the 
Russian  Government  has  given  a  licence  to  the  Kamtchatka  Commercial 
and  Industrial  Company  and  the  East  Siberian  Company,  permitting 
vessels  chartered  by  the  two  companies  to  sail  in  those  parts,  and  the 
ship  under  consideration,  though  a  foreign  vessel,  was  navigating  under 
this  licence.  And  the  cargo  on  board,  mentioned  in  the  text,  consisting 
of  the  remainder  of  the  commodities,  furs  bought,  the  steam  launch, 
etc.,  is  the  property  of  the  Kamtchatka  Commercial  and  Industrial 
Company. 

The  above  facts  are  clear  from  the  statement  and  the  list  of  goods 
submitted  by  Lieutenant  K.  Inokado,  representative  of  the  captain  of 
the  Idzumi;  from  the  testimony  given  by  Thomas  Riley,  master;  James 
Bowen,  first  mate,  and  M.  Bitty,  boatswain,  of  the  Montara;  Lieutenant 
Inokado  and  Nicolai  Bruggen,  representatives  of  the  Kamtchatka  Com- 
mercial and  Industrial  Company,  and  Nicolai  Alexandrovitch  Grebnicky, 
counsellor  of  the  Russian  Home  Department  and  agent   for  supplying 


CHAP.  II.,  SECT.  III.]        ENEMY   VESSELS.  635 

provisions  to  the  coasts  of  the  Okhotsk  and  the  Bering  seas  for  1905, 
and  from  the  certificate  of  the  ship's  nationality,  the  charter  party,  the 
six  bills  of  lading,  the  clearance  from  San  Francisco,  the  ship's  log, 
the  official  log,  the  copy  of  testimony  given  by  Grebnicky  in  the  case 
of  the  American  steamship  Australia,  the  copy  of  the  orders  of  the 
Russian  Government  given  to  the  supply  agent,  etc. 

The  purport  of  the  petition  is  as  follows: 

The  ship  under  consideration  has  been  the  property  of  the  petitioners, 
the  Pacific  Coast  Steamship  Company,  since  before  the  outbreak  of  the 
Russo-Japanese  War,  and  is  a  neutral  vessel,  registered  at  San  Fran- 
cisco, flying  the  American  flag.  In  March,  1905,  the  Kamtchatka  Com- 
mercial and  Industrial  Company  entered  into  a  contract  with  the 
owners,  and  chartered  her  for  about  5  months,  with  the  object  of  send- 
ing her  to  the  Okhotsk  Sea,  Kamtchatka,  and  vicinity.  The  contract 
was  drawn  up,  according  to  common  usage,  on  a  printed  form.  While 
fulfilling  the  contract,  no  fictitious  ship's  papers  were  prepared,  nor 
any  irregular  entry  made,  from  which  it  will  be  seen  that  the  owner 
had  no  intention  of  violating  neutrality.  The  ship  took  in,  at  San 
Francisco,  tobacco,  sugar,  agricultural  implements,  ironware,  provisions, 
etc.,  which  are  daily  necessaries  of  the  people  of  Kamtchatka  and  the 
adjacent  islands.  She  left  port  on  the  9th  of  the  7th  month  and  went 
round  Copper  Island,  Petropavlovsk,  and  vast  Kamtchatka,  where  she 
discharged  her  cargo  and  took  in  goods  to  be  transported  to  San  Fran- 
cisco. On  her  way  back,  she  called  at  Behring  Island  and  anchored  at 
Nikolski  Road.  On  the  16th  of  the  8th  month,  in  the  afternoon,  when 
she  had  discharged  all  the  goods  to  be  landed  there  and  was  making 
preparations  to  leave  for  San  Francisco  that  evening,  she  was  captured, 
on  the  grounds  that  a  part  of  her  cargo  was  contraband  of  war  and 
that  she  was  in  the  employ  of  the  Russian  Government — her  charterer, 
the  Kamtchatka  Commercial  and  Industrial  Company,  being  under  the 
control  and  protection  of  that  Government. 

(1)  The  ship  did  not  take  on  board  any  contraband  of  war.  Sup- 
posing the  goods  on  board  were  contraband,  according  to  theory  and 
precedent,  the  ship  is  not  liable  to  confiscation  after  landing  the  con- 
traband. 

(2)  The  charterers  hold  a  monopoly,  granted  by  the  Russian  Gov- 
ernment, for  buying  furs  of  sea  animals  in  the  Kommandorski  Islands 
and  vicinity,  but  they  have  never  changed  their  character  as  a  private 
concern.  Hence,  this  ship  cannot  be  regarded  as  in  the  Russian  Govern- 
ment employ  because  she  was  chartered  by  the  company. 

(3)  The  closing  of  northern  Kamtchatka  to  foreign  vessels  was  not 
in  the  interest  of  Russia,  and  even  before  the  war  foreign  vessels  were 
not  forbidden  to  navigate  there.     Admitting  that  those  districts  were 


636  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

opened  to  foreign  vessels  on  the  outbreak  of  the  war,  it  was  a  general 
removal  of  the  prohibition,  not  a  special  licence  given  to  the  ship  under 
consideration. 

And  were  it  regarded  as  a  special  licence,  it  was  nothing  more  than 
a  legal  transaction  between  the  Russian  Government  and  the  Kamt- 
chatka  Commercial  and  Industrial  Company,  and  not  a  licence  obtained 
by  this  particular  ship.  "  Vessels  voyaging  by  licence  of  the  enemy," 
(Art.  VI.  of  the  Japanese  Regulations  Governing  Captures  at  Sea), 
means  vessels  that  have  themselves  obtained  such  licence  from  the  ene- 
my's state.  And  even  a  ship  navigating  with  such  a  special  licence 
should  not  be  regarded  as  guilty  of  breach  of  neutrality  after  she  has 
discharged  her  whole  cargo. 

(4)  The  Japanese  Regulations  Governing  Captures  at  Sea  are  in- 
structions given  to  the  military  authorities,  and  are  not  applicable  to 
vessels  other  than  Japanese,  especially  outside  Japanese  territorial  wa- 
ters, except  when  they  are  in  conformity  with  the  precedents  and  spirit 
of  International  Law. 

(5)  The  transportation,  in  this  case,  was  made  for  humanity,  the 
goods  being  provisions  for  the  starving  people  of  distant  islands. 

(6)  Captures  at  sea  necessitated  by  war  should  be  discontinued  at 
the  restoration  of  peace,  and,  consequently,  it  is  proper  to  release  prizes 
on  which  a  decision  has  not  yet  been  given.  This  is  very  clear  from 
the  precedents  at  the  close  of  the  French-Mexican  war  of  1856  (may  be 
a  mistake  for  1865),  of  the  Austrian-French  and  Piedmontese  war  of 
1859,  of  the  Danish-Prussian  and  Austrian  war  of  1864,  and  of  the 
Franco-Prussian  war.  Prizes  belonging  to  belligerents  may  be  judged 
according  to  treaty  or  on  the  principle  of  reciprocity,  but  neutral  ships 
and  goods  are  not  subject  to  the  jurisdiction  of  belligerent  prize 
courts  after  peace  has  been  restored.  This  ship  and  cargo  should,  there- 
fore, be  released. 

In  order  to  prove  the  fact  mentioned  in  the  first  part  of  (3),  the 
petitioners  produced  reports  on  vessels  entering  and  leaving  Vladivostok, 
published  in  the  Official  Gazette  of  the  12th  of  the  3rd  month  of  the 
35th  year  of  Meiji  and  the  14th  of  the  10th  month  of  the  36th  year  of 
Meiji,  and  Monthly  Reports  of  the  Yokohama  customs,  Supplement 
No.  8  (report  of  agent  Yashiro  and  Inspector  Okakura). 
After  due  consideration,  the  Court  concludes  as  follows: 
When  a  belligerent  gives  a  licence  to  certain  ships  for  trade  in  a 
district  closed  to  foreign  vessels  in  time  of  peace,  the  other  belligerent 
may  confiscate  such  vessels,  even  of  neutral  ownership,  voyaging  under 
such  licence,  as  having  the  enemy  character,  and  also  the  goods  on  board 
belonging  to  enemy  persons.  This  is  recognised  by  the  precedents  and 
theory  of  International  Law.     The  Kommandorski   and   other  islands, 


€HAP.  II.,  SECT.  III.]        ENEMY   VESSELS.  637 

where  the  ship  under  consideration  was  trading,  were  formerly  closed 
to  foreign  vessels.  But  on  the  outbreak  of  the  Russo-Japanese  war  the 
Russian  Government  gave  a  licence  to  the  Kamtchatka  Commercial  and 
Industrial  Company  and  the  East  Siberia  Company,  permitting  vessels 
chartered  by  the  two  companies  to  navigate  to  those  districts,  because 
Russian  vessels  alone  were  not  sufficient  to  carry  provisions  there.  The 
ship  under  consideration  sailed  to  the  Kommandorski  Islands  and  other 
places  by  virtue  of  this  licence.  This  is  very  clear  from  the  testimony 
given  by  Grebnicky.  She  was  actually  captured  at  anchor  in  Nicolski 
Road,  of  the  Kommandorski  Islands.  She  must,  therefore,  be  considered 
as  an  enemy  ship  and  the  goods  on  board  as  enemy  goods,  being  the 
property  of  the  Kamtchatka  Commercial  and  Industrial  Company,  the 
charterers  of  the  ship. 

(a)  The  petitioners  request  the  release  of  the  ship  on  the  ground 
that  the  owner  and  the  master  had  no  intention  of  violating  neutrality. 
But  whether  or  not  the  ship  navigated  under  Russian  licence  is  a  ques- 
tion of  fact,  to  be  decided  by  the  acts  of  the  ship  herself,  and  the  inten- 
tion of  the  owner  or  the  master  has  nothing  to  do  with  it. 

(6)  The  petitioners  contend  that  the  Kommandorski  Islands  and 
vicinity  were  open  to  the  trade  of  foreign  vessels  before  the  war,  pro- 
ducing as  evidence  two  numbers  of  the  Official  Gazette  and  a  supple- 
ment to  the  Monthly  Reports  of  Customs.  But  these  are  not  sufficient 
to  prove  that  foreign  vessels  freely  traded  in  the  Kommandorski  Islands 
and  vicinity  without  permission  of  the  Russian  Government.  Conse- 
quently the  fact  testified  by  Grebnicky,  Governor  of  the  Kommandorski 
Islands  and  supply  agent  for  the  coasts  of  the  Behring  Sea,  etc.,  for 
1905,  cannot  be  denied. 

(c)  The  petitioners  argue  that,  admitting  that  those  districts  were 
opened  to  foreign  vessels  on  the  outbreak  of  the  war,  it  was  a  general 
removal  of  the  prohibition,  not  a  special  licence  given  to  this  ship,  and 
that,  were  it  a  special  licence,  it  was  a  licence  given  to  the  Kamtchatka 
Commercial  and  Industrial  Company,  not  to  this  ship.  But  it  is  clear, 
from  the  testimony  of  Grebnicky,  that  the  licence  was  given  to  vessels 
chartered  by  the  Kamtchatka  Commercial  and  Industrial  Company  and 
one  other  company,  and  that  any  other  foreign  vessels  navigating  there 
would  infringe  on  the  Russian  prohibition.  Admitting  that  the  licence 
was  given  to  the  chartering  company  and  not  to  the  ship  herself,  she 
navigated  in  the  prohibited  districts  by  virtue  of  that  licence,  and  there- 
fore has  the  enemy  character,  as  explained  above. 

(d)  The  petitioners  argue  that  the  ship  should  not  be  confiscated, 
because  her  voyage  was  made  for  the  sake  of  humanity.  But  it  was  in 
performance  of  the  ordinary  business  of  the  Kamtchatka  Commercial 
and  Industrial  Company  of  carrying  supplies  to  those  islands,  and  was 


638  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

a  kind  of  traffic.     No  charity  or  humanity  can  be  recognised  in  the 
undertaking. 

(e)  The  petitioners  argue  that  captures  at  sea  should  not  be  made 
after  the  restoration  of  peace,  and  that  the  ship  and  cargo  under  con- 
sideration are  not  subject  to  the  jurisdiction  of  Prize  Courts;  and  that, 
consequently,  they  should  be  released.  But  the  precedents  cited  by  the 
petitioners  were  cases  in  which  the  mutual  relations  of  belligerents  had 
been  stipulated  by  special  conventions,  or  in  which  some  particular 
enemy  ships  were  released  by  special  ordinance,  and  they  do  not  apply 
to  this  case.  The  belligerent  right  of  capture  ceases  with  the  restora- 
tion of  peace,  but  not  the  validity  of  captures  already  made.  The 
distinction  must  be  made  between  the  act  of  capture  and  the  aot  of 
judging  whether  or  not  a  capture  was  reasonable.  Therefore,  a  Prize 
Court,  unless  bound  by  special  convention  or  ordinance,  should  continue 
the  examination  of  both  neutral  and  enemy's  ships,  and  give  de- 
cision whether  to  confiscate  or  not,  even  after  the  restoration  of  peace. 
The  precedent  of  the  Yik-sang  case  in  the  Chino-Japanese  War  of  the 
27th-28th  year  of  Meiji,  as  well  as  the  usage  and  theory  of  Inter- 
national Law,  show  the  correctness  of  this  view.  For  the  above  rea- 
sons the  ship  and  cargo  under  consideration  are  liable  to  confiscation, 
and  as  to  the  other  contentions  of  the  petitioners,  the  Court  sees  no 
necessity  of  giving  any  explanation. 

Therefore,  the  decision  as  stated  in  the  text  has  been  given. 

Given  this  4th  day  of  the  11th  month  of  the  38th  year  of  Meiji,  at 
the  Yokosuka  Prize  Court,  the  Public  Procurator,  S.  Uchida,  taking 
part. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected 
for  the  same  reasons  held  by  the  Yokosuka  Prize  Court. 


CHAPTER   III. 
CONTRABAND   PERSONS. 

During  the  war  we  captured  neutral  vessels  for  various  rea- 
sons, as  already  shown  in  the  tabulated  statement.  We  are 
now  dealing  with  them,  classifying  them  according  to  causes  of 
detention,  such  as  contraband  carriers,  blockade  v  runners,  etc. 

In  International  Law  there  are  not  frequent  instances  in 
regard  to  "  Contraband  Persons."  (This  phrase  is  not  quite 
scientific,  and  many  recent  authors  do  not  recognise  it,  still,  as 
it  stands  in  the  Japanese  Prize  Law,  it  is  used  for  this  book.) 

The  following  is  the  single  case  in  this  concern  which 
added  to  the  former  precedents  by  the  late  war : 

Case.     The  Nigretia. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Nov.  16,  1905. 

Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  was  given  on  the  17th  of  the  4th  month  of 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court,  in  the  case  of  the 
British  steamship  Nigretia. 

Decision. 
Petition  No.  II. 

Petitioner — Samuel  Harrison,  British  subject,  master  of  the 
steamship  Nigretia,  West  Hartlepool,  England. 

Attorney — T.  Shigeto,  Counsellor  at  Law,  33  Hikichi  Machi, 
Nagasaki. 

Attorney — S.  Hatakeyama,  Counsellor  at  Law,  18  Hirado 
Machi,  Nagasaki. 

In  the  case  of  the  British  steamship  Nigretia,  decision  is  given  as 

follows: 

Text  of  Decision. 

The  steamship  Nigretia  is  hereby  confiscated. 

Facts  and  Reasoning. 
The  steamship  Nigretia,  being  the  property  of  Aran  &  Co.  (?),  New- 
castle on   Tyne,   England,  is  a  merchant   ship  under   the   British  flag, 

639 


640  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

chiefly  engaged  in  the  transportation  of  goods.  On  the  22nd  of  the  10th 
month  in  the  37th  year  of  Meiji,  Alexander  Serebrenick,  a  Russian 
subject,  made  a  contract  at  Shanghai  with  Moller  &  Co.,  agents  of  the 
said  Aran  &  Co.,  for  chartering  this  ship,  and  loaded  her  with  70,000 
cases  of  kerosene  oil.  He  also  caused  this  ship  to  take  on  board  Naval- 
Lieutenant  Parwell  Mihailovitch  Plenn,  the  captain  of  the  Russian  tor- 
pedo boat  Ratstoropny,  which  had  lately  escaped  from  Port  Arthur  and' 
blown  herself  up  at  Chefoo,  under  the  alias  Friederick  Pilsener,  German 
subject,  and  Russian  Sub-Lieutenant  Crandy  Warentinowich  Sheweniyoff, 
also  an  officer  of  the  said  torpedo  boat,  under  the  alias  Jan  Golsahalky, 
a  German  subject,  together  with  Selgay  Poletika,  a  Russian  merchant, 
pretending  that  they  were  his  clerks  or  supercargo,  and  giving  each  of 
them  letters,  in  which  he  asked  them  to  manage  some  commercial  mat- 
ters. This  ship  left  Shanghai  on  the  16th  of  the  12th  month,  and  when 
she  had  reached  the  Strait  of  Tsushima  she  was  captured  by  the  Japa- 
nese man-of-war  Tsushima,  under  suspicion  of  carrying  contraband  per- 
sons, at  2  p.m.  on  the  19th  of  the  same  month,  in  N.  lat.  35°  18'  and 
E.  long.  129°  50'. 

The  above  facts  are  proved  by  the  written  statement  of  T.  Sento, 
Captain  of  the  Tsushima,  by  the  affidavit  of  Samuel  Harrison,  Master 
of  the  Nigretia,  Russian  Naval  Lieutenant  Parwell  Mihailovitch  Plenn, 
Russian  Sub-Lieutenant  Crandy  Warentinowich  Sheweniyoff,  and  Rus- 
sian merchant  Selgay  Poletika,  by  the  certificate  of  the  ship's  nation- 
ality, the  charter  party,  the  bill  of  lading,  and  the  letters  given  to  the 
three  passengers  by  Alexander  Serebrenick. 

The  main  points  of  the  statements  of  the  attorney  for  the  petition- 
ers are: 

The  petitioners  took  on  board  three  persons,  i.  e.,  Plenn,  Sheweniyoff, 
and  Poletika,  according  to  the  charter  party,  which  stipulated  that  he 
should  take  on  board  one  supercargo  and  two  passengers.  He  believed 
the  charterer's  word,  and  thought  that  Plenn  and  Sheweniyoff  were 
Germans.  Moreover,  they  were  not  in  the  uniform  of  Russian  officers, 
but  pretended  to  be  Germans,  and  concealed  their  position  by  talking 
in  the  German  language  among  themselves.  Therefore,  the  petitioner 
did  not  know  they  were  Russians,  and  nothing  proves  that  he  knew. 
Consequently  there  is  no  fault  on  the  part  of  the  petitioner  with  regard 
to  the  embarkation  of  the  two  Russian  officers.  Besides,  the  said  two 
Russian  officers  being  the  same  persons  released  by  the  Chinese  Govern- 
ment on  parole,  have  no  longer  the  capacities  of  naval  officers  and  are 
not  contraband  persons. 

For  the  above  reasons  this  ship  should  not  be  confiscated  for  the 
transportation  of  contraband  persons. 

The  main  point  of  the  opinion  of  the  Public  Procurator  is:  the  two 


CHAP.  III.]  CONTRABAND   PERSONS.  641 

persons,  Plenn  and  Sheweniyoff,  are  Russian  naval  officers,  and  the  ship 
which  carried  them  should  be  confiscated  for  the  transportation  of  con- 
traband persons. 

After  due  consideration,  the  Court  concludes  as  follows: 
It  has  been  generally  admitted  by  the  rules  and  usages  of  modern 
International  Law  that  a  neutral  ship  which  carries  military  persons 
for  a  belligerent  state  is  liable  to  confiscation  for  the  transportation  of 
contraband  persons,  unless  it  is  proved  that  the  master  was  not  in  fault 
and  did  not  know  the  fact.  The  steamship  Nigrctia  attempted  to  carry 
two  Russian  naval  officers  to  Vladivostok,  and  undoubtedly  she  was 
engaged  in  the  transportation  of  contraband  persons.  The  petitioner 
contends  that  he  did  not  know  the  two  persons  who  embarked  in  his 
ship  were  Russian  naval  officers,  and  he  was  not  to  blame  for  that 
ignorance;  that  this  matter  was  the  act  of  the  charterer,  and  so  the 
ship  should  not  be  confiscated.  But  there  is  nothing  to  prove  that  the 
master  did  not  know  the  fact,  and  even  granting  he  did  not,  it  cannot 
be  held  that  he  was  faultless,  because  he  took  them  on  board  as  Ger- 
mans, believing,  recklessly,  the  charterer's  word.  Again,  the  petitioner 
contends  that  the  said  Russian  naval  officers  being  the  persons  released 
by  the  Chinese  Government  on  parole,  have  no  longer  the  capacities  of 
combatants,  and  consequently  are  not  contraband  persons.  But  whether 
or  not  they  gave  parole  to  the  Chinese  Government  makes  no  difference 
so  far  as  their  status  of  combatants  is  concerned.  Moreover,  consider- 
ing the  fact  that  they  attempted  to  go  secretly  to  Vladivostok,  the  base 
of  the  Russian  squadron,  under  alias,  it  cannot  be  doubted  that  they 
were  on  a  military  mission  or  were  going  to  render  military  service. 
As  the  foregoing  explanations  show,  this  ship  was  engaged  in  the  trans- 
portation of  combatant  persons,  so  she  should  be  confiscated.  The  de- 
cision is,  therefore,  given  as  in  the  text. 

Given  this  17th  day  of  the  4th  month  of  the  38th  year  of  Meiji,  at 
the  Sasebo  Prize  Court,  the  Public  Procurator,  S.  Yamamoto,  taking 
part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 
(Cargo.) 

Published  in  the  Official  Gazette  on  Nov.  16,  1905. 

The  following  decision  was  given  on  the  17th  of  the  4th  month  of 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court,  in  the  case  of  the 
cargo  of  the  British  steamship  Nigretia. 


642  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Decision. 
Petition  No.  III. 

Petitioner — Alexander    Serebrenick,    a    Russian    merchant, 

Range  Road,  Shanghai,  China. 
Attorney — T.  Shigeso,  Counsellor  at  Law,  33  Hikichi  Machi, 

Nagasaki. 
Attorney — S.   Hatakeyama,  Counsellor  at  Law,  18   Hirado 

Machi,  Nagasaki. 

In  the  case  of  the  cargo  of  the  British  steamship  Nigretia,  decision 
is  given  as  follows: 

Text  of  Decision. 

Seventy  thousand  cases  of  kerosene  oil,  loaded  in  the  steamship 
Nigretia,  are  hereby  confiscated. 

Facts  and  Reasoning. 

Seventy  thousand  cases  of  kerosene  oil,  the  cargo  in  consideration, 
were  loaded  in  the  steamship  Nigretia,  chartered  at  Shanghai,  China, 
by  the  petitioner,  Alexander  Serebrenick,  and  despatched  for  Vladivos- 
tok on  the  16th  of  the  12th  month  in  the  37th  year  of  Meiji.  The  peti- 
tioner caused  the  steamship  Nigretia  to  take  on  board  Russian  naval 
Lieutenant  Parwell  Mihailovitch  Plenn,  the  Captain  of  the  Russian  tor- 
pedo boat  Ratstoropny,  which  had  lately  escaped  from  Port  Arthur  and 
blown  herself  up  at  Chefoo,  under  the  alias  Friederick  Pilsner,  a  Ger- 
man subject,  and  Russian  Sub-Lieutenant  Crandy  Warentinowich  Shew- 
eniyoff,  also  an  officer  of  the  said  torpedo  boat,  under  the  alias  Jan 
Golschalky,  a  German  subject,  together  with  Selgay  Poletika,  a  Rus- 
sian merchant,  pretending  that  they  were  his  clerks  or  supercargoes, 
and  giving  each  of  them  letters  intrusting  them  with  the  management 
of  some  commercial  matter.  When  this  ship  was  captured  by  the  Japa- 
nese man-of-war  Tsushima,  under  suspicion  of  carrying  contraband  per- 
sons, at  2  p.m.  on  the  19th  of  the  12th  month  in  the  37th  year  of  Meiji, 
in  N.  lat.  35°  18'  and  E.  long.  129°  50',  the  cargo  in  confiscation  was 
captured  at  the  same  time. 

The  above  facts  are  proved  by  the  written  statement  of  T.  Sento, 
Captain  of  the  Tsushima,  by  the  affidavits  of  Samuel  Harrison,  Master 
of  the  Nigretia,  Russian  naval  Lieutenant  Parwell  Mihailovitch  Plenn, 
Russian  Sub-Lieutenant  Crandy  Warentinowich  Sheweniyoff,  and  Rus- 
sian merchant  Selgay  Poletika,  by  the  certificate  of  the  ship's  nation- 
ality, the  charter  party,  and  the  letters  given  to  the  three  passengers 
by  Alexander  Serebrenick. 

The  main  points  of  the  statement  of  the  attorneys  for  the  peti- 
tioner are: 


CHAP.  III.]  CONTRABAND   PERSONS.  643 

Kerosene  oil,  the  cargo  in  consideration,  is  not  contraband  of  war. 
Though  it  is  property  of  a  subject  of  the  enemy  state,  it  was  loaded  in 
a  neutral  ship  and  its  destination  is  not  a  blockaded  port.  Hence,  this 
cargo  is  not  liable  to  confiscation  by  a  belligerent,  so  it  should  be 
released. 

The  main  point  in  the  opinion  of  the  Public  Procurator  is:  The 
petitioner  attempted  to  carry  two  Russian  naval  officers  to  the  enemy's 
territory  under  the  pretext  that  they  were  his  clerks  or  supercargoes; 
that  is  to  say,  he  engaged  in  the  transportation  of  contraband  persons. 
Therefore  the  cargo  in  consideration,  belonging  to  him,  should  be  con- 
fiscated. 

After  due  consideration,  the  Court  concludes  as  follows: 

According  to  the  principle  of  modern  International  Law,  when  a  ship 
engages  in  prohibited  transportation  (unneutral  service),  she  is  liable 
to  confiscation,  and  when  the  owner  of  her  cargo  has  participated  in 
the  above  transportation,  his  cargo  is  also  liable  to  confiscation.  The 
cargo  in  consideration  was  loaded  in  the  steamship  Nigretia  by  the 
petitioner,  Alexander  Serebrenick,  who  attempted  to  carry  in  that  ship 
two  Russian  naval  officers  to  Vladivostok.  In  fact,  Serebrenick  is  the 
person  who  planned  and  executed  the  aforesaid  illegal  transportation. 
Hence,  the  goods  belonging  to  him  should  be  confiscated,  no  matter 
whether  they  are  contraband  of  war  or  not.  The  decision  is  therefore 
given  as  in  the  text. 

Given  this  17th  day  of  the  4th  month  of  the  38th  year  of  Meiji,  at 

the   Sasebo  Prize   Court,   the   Public  Procurator,  S.  Yamamoto,  taking 

part. 

(Signed)     The  President  and  Councillors  of  the 

Sasebo  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  Nov.  16,  1905. 

The  following  decision  was  given  on  the  2nd  of  the  11th  month  of 
the  38th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  appeal  case 
of  the  British  steamship  Nigretia. 

Decision. 
Case  No.  XLIV. 

Petitioner — Samuel  Harrison,  master  of  the  steamship  Ni- 
gretia, West  Hartlepool,  England. 

Attorney — S.  Hatakeyama,  Counsellor  at  Law,  18  Hirado 
Machi,  Nagasaki. 

Attorney — T.  Shigeto,  Counsellor  at  Law,  33  Hikichi  Machi, 
Nagasaki. 


644  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

In  the  case  of  the  British  steamship  Nigretia,  captured  by  the  Japa- 
nese man-of-war  Tsushima  on  the  19th  of  the  12th  month  of  the  37th 
year  of  Meiji,  in  N.  lat.  35°  18'  and  E.  long.  129°  50',  the  Sasebo  Prize 
Court  gave  decision,  on  the  17th  of  the  4th  month  of  the  38th  year  of 
Meiji,  confiscating  the  said  steamship.  Whereas,  S.  Hatakeyama  and  T. 
Shigeto,  attorneys  for  the  said  petitioner,  Samuel  Harrison,  have  filed 
an  appeal  against  the  above  decision,  the  case  has  been  examined  and 
the  following  decision  is  given,  K.  Tsuzuki  and  B.  Ishiwatari,  Public 
Procurators  of  the  Higher  Prize  Court,  taking  part. 

The  appeal  by  S.  Hatakeyama  and  T.  Shigeto,  attorneys  for  the 
petitioners,  against  the  original  decision  is  based  upon  the  following 
grounds: 

(1)  The  steamship  Nigretia,  having  been  chartered  at  Shanghai  by 
a  Russian  subject,  Alexander  Serebrenick,  on  the  22nd  of  the  10th  month 
of  the  37th  year  of  Meiji,  left  Shanghai  for  Vladivostok  on  the  16th  of 
the  12th  month  in  the  same  year,  with  a  cargo  of  70,000  cases  of  kero- 
sene oil.  It  is  true  that  this  steamship  took  on  board  Russian  Naval 
Lieutenant  Parwell  Mihailovitch  Plenn  and  Sub-Lieutenant  Crandy 
Sheweniyoff,  believing  that  the  former  was  Friedrich  Pilsener,  a  German 
subject,  and  the  latter  was  Jan  Golschalky,  also  a  German  subject. 
But  it  was  because  the  charter  party  stipulated  that  she  should  take 
on  board  one  supercargo  and  two  passengers;  and  on  the  day  before 
her  departure  the  ship  was  notified  that  two  persons  would  embark  in 
her  as  supercargoes,  and  on  the  day  of  her  departure  two  supercargoes 
came  on  board;  the  charterer,  Serebrenick,  told  the  petitioner  that  the 
above  two  persons  were  Germans  in  his  employ,  and  it  is  needless  to 
say  that  the  petitioner  did  not  suppose  they  were  Russian  combatants; 
besides,  there  was  nothing  suspicious  about  them.  The  above  facts  are 
proved  by  the  affidavit  of  Russian  Naval  Lieutenant  Parwell  Mihailo- 
vitch Plenn,  Russian  Sub-Lieutenant  Crandy  Warentinowich  Sheweni- 
yoff, by  the  written  statement  of  the  charterer,  Alexander  Serebrenick, 
by  the  charter  party,  and  exhibits  A  No.  1  to  No.  3.  However,  the 
original  court  unlawfully  ruled  that  the  petitioner  engaged  in  the  trans- 
portation of  contraband  persons.  In  the  former  decision  it  was  ex- 
plained that  there  was  nothing  to  prove  that  the  master  did  not  know 
that  the  persons  who  came  on  board  were  combatants;  and  that,  even 
granting  he  did  not,  it  could  not  be  held  that  he  was  faultless,  because 
he  took  them  on  board  as  Germans,  believing,  recklessly,  the  charterer's 
word.  But  it  is  a  general  rule  of  evidence  that  the  burden  of  proof 
rests  with  the  party  who  makes  a  positive  affirmation,  and  not  with 
the  party  who  makes  a  negative  affirmation;  and  the  same  rule  should 
be  applied  to  questions  relating  to  public  law.  Even  supposing  the 
public  law  requires  that,  in  a  case  like  this,  the  petitioner  should  pri- 


CHAP.  III.]  CONTRABAND   PERSONS.  645 

marily  give  his  proof,  the  above  enumerated  evidences  will  amply  prove 
his  ignorance.  Therefore,  in  order  to  hold  that  he  had  knowledge  of 
the  fact,  sufficient  proof  must  be  given  by  the  party  who  makes  that 
assertion.  The  ruling  of  the  original  court,  without  giving  any  proof 
that  the  petitioner  had  knowingly  engaged  in  the  transportation  of 
combatants,  must  be  regarded  as  unlawful,  because  it  was  not  in  con- 
formity with  the  fundamental  principle  of  the  law  of  evidence. 

(2)  Plenn  and  Sheweniyoff  were  officers  of  the  Russian  torpedo  boat 
Ratstoropny,  and  hence  they  are  apparently  contraband  persons.  But 
before  coming  on  board  this  ship  they  had  been  set  free  by  the  Chinese 
Government,  on  giving  their  parole  that  they  would  not  henceforth 
engage  in  battle,  and  consequently  it  must  be  said  that  they  were  no 
longer  combatants.  "  Contraband  person  "  means,  as  stipulated  in  the 
Japanese  Regulations  Governing  Captures  at  Sea,  the  enemy's  soldiers 
or  sailors,  or  any  other  person  transported  in  order  to  engage  in  the 
military  service  of  the  enemy.  Hence,  although  a  person  may  formerly 
have  been  a  combatant,  he  cannot  be  regarded  as  such  after  having 
given  his  parole  and  expressed  his  will  not  to  participate  in  battle.  It 
follows  that  a  ship  carrying  such  a  person  is  not  liable  to  confiscation. 

(3)  Even  granting  that  the  above-named  two  persons  were  contra- 
band persons,  yet  this  ship  should  not  be  confiscated.  The  reason  a 
ship  carrying  contraband  persons  is  liable  to  confiscation  is  because  the 
act  is  not  ordinary  commercial  transportation,  but  a  military  act  to 
assist  one  of  the  belligerents.  International  Law  holds  such  an  act  to 
be  auxiliary  military  service  or  prohibited  sea  carriage  (unneutral  ser- 
vice). In  order  to  charge  any  ship  with  the  above  act,  the  following 
must  be  proved:  (a)  The  object  of  the  voyage  must  be  the  transporta- 
tion of  contraband  persons;  (b)  the  owner  of  the  ship  or  her  master 
must  be  engaged  in  the  transportation  under  contract  with  the  enemy's 
Government  or  by  the  will  of  the  enemy's  Government;  (c)  the  persons 
must  be  taken  on  board  in  the  capacity  as  combatants.  That  the  ob- 
ject of  this  ship's  voyage  was  ordinary  commerce  is  proved  by  the  char- 
ter party,  and  by  the  fact  that  transportation  of  kerosene  oil,  which  is 
non-contraband,  was  the  object  of  her  voyage.  There  is  no  proof  that 
this  ship  intended  to  assist  the  enemy's  state.  The  necessary  condition 
(a)  does  not  apply  to  this  ship.  The  transportation  by  this  ship  was 
made  at  the  request  of  Serebrenick  &  Co.,  a  private  firm,  and  not  under 
contract  with  the  enemy's  Government  nor  by  their  will.  The  necessary 
condition  (6)  does  not  apply  to  this  ship.  The  master  was  under  no 
obligation  to  investigate  whether  or  not  the  passengers  in  plain  dress 
were  combatants.  The  two  persons,  Plenn  and  Sheweniyoff,  called  them- 
selves Germans,  and,  being  in  common  dress,  they  could  not  be  taken 
for  combatants.     The   necessary   condition    (c)    does  not   apply  to  this 


646  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

ship.    In  short,  this  ship  did  not  carry  contraband  persons,  so  she  should 
not  be  confiscated. 

The  main  points  of  the  response  of  C.  Minakami  and  S.  Yamamoto, 
Public  Procurators  of  the  Yokosuka  Prize  Court,  are: 

(1)  The  petitioner  did  not  give  any  proof  of  his  statement  that  he 
did  not  know  that  the  two  persons  who  came  on  board  were  Russian 
naval  officers.  Moreover,  in  the  letters  given  by  the  charterer  to  each 
of  them,  which  were  shown  to  the  master  by  them  at  the  time  of  their 
embarkation,  the  following  statement  was  contained  in  them:  "This  is 
a  good  opportunity  not  easily  to  be  obtained  lately.  ...  I  hope  for 
your  safe  return.  .  .  ."  Such  wording  would  not  be  used  by  an  em- 
ployer to  his  ordinary  business  employees,  yet  the  master  took  the  a  Dove 
two  persons  as  Germans  in  the  charterer's  employ,  recklessly  believing 
his  word.  Hence,  the  master,  the  petitioner,  cannot  be  regarded  as 
faultless. 

(2)  Though  the  two  persons,  Plenn  and  Sheweniyoff,  had  been  set 
free  by  the  Chinese  Government  on  giving  parole  not  to  engage  in  war 
again,  they  have  not  lost,  on  that  account,  their  capacities  of  military 
persons,  and  it  cannot  be  taken  for  granted  that  they  would  observe 
their  parole  and  not  engage  in  future  battles.  On  the  contrary,  it  must 
be  held  that  they  were  running  away  in  order  to  engage  in  battle,  vio- 
lating their  parole,  because  not  only  were  they  going  to  Vladivostok, 
the  only  Russian  naval  base  in  the  Orient  at  the  time,  but  their  evil 
intentions  are  sufficiently  proved  by  the  fact  that  they  disclosed  them- 
selves as  ordinary  neutral  traders,  belying  their  nationality,  names,  and 
status.  Besides,  the  fact  that  Serebrenick  &  Co.,  the  charterers  of  this 
ship,  and  the  master  colluded  in  the  fraud  is  clearly  proved  by  the 
stipulation  in  Art.  XVI.  of  the  charter  party,  by  the  fact  that  the  said 
company  gave  the  said  two  persons  letters  intrusting  them  with  the 
disposal  of  the  cargo,  and  by  the  master's  statement  when  he  was  ex- 
amined by  the  counsellor  in  charge  of  this  case  at  the  original  court. 

(3)  To  make  a  contract  with  the  enemy's  Government,  or  to  act 
under  its  will,  is  not  a  necessary  condition  for  constituting  the  offence 
of  breach  of  neutrality,  which  the  transportation  of  contraband  persons 
is.  When  the  owner  of  a  ship,  her  charterer,  or  her  master  carries 
contraband  persons,  or  letters  with  evil  intention,  then  the  above  charge 
may  be  supported,  as  shown  by  many  precedents.  The  petitioner  con- 
tends that  he  was  faultless,  because  Plenn  and  another  person  came  on 
board  in  plain  dress.  This  contention  might  be  admitted  in  the  case 
of  an  ordinary  passenger  ship  of  fixed  service,  but  cannot  be  maintained 
in  the  case  of  a  cargo  ship  bound  for  a  naval  port  of  a  belligerent,  as 
in  this  case.  To  sum  up,  with  regard  to  prohibited  carriage  by  sea, 
neutrals  who  engage  in  that  trade  cannot  escape  their  responsibilities, 


CHAP.  III.]  CONTRABAND   PERSONS.  647 

no  matter  whether  or  not  they  knew  the  circumstances,  or  acted  under 
threat  and  against  their  will.  The  more  so  in  this  case,  where  the 
charterer,  the  master,  and  the  fugitive  combatants  were  all  in  collusion. 
For  the  above  reasons  this  appeal  should  be  dismissed. 

The  reasons  of  decision  of  the  Higher  Prize  Court  are  given  as  follows: 

The  steamship  Nigretia  left  Shanghai  for  Vladivostok,  having  on 
board  Russian  Naval  Lieutenant  Plenn  and  Sub-Lieutenant  Sheweniyoff, 
and  a  cargo  of  70,000  cases  of  kerosene  oil.  The ,  petitioner  contends 
that  as  the  said  two  persons  had  been  released  by  the  Chinese  Govern- 
ment on  parole,  they  were  no  longer  combatants,  and  consequently  can- 
not be  regarded  as  contraband  persons.  But  the  military  persons,  re- 
leased on  parole,  cannot  be  held  to  have  been  deprived  of  their  military 
capacities.  And  even  though  they  had  given  their  parole,  it  does  not 
necessarily  follow  that  they  would  certainly  observe  it.  In  the  present 
case  the  said  two  persons  attempted  a  secret  voyage  to  a  naval  port 
of  the  enemy's  state,  belying  their  nationality  and  names,  and  conceal- 
ing their  status  as  the  enemy's  combatants.  This  clearly  shows  that 
they  were  on  some  warlike  mission  or  going  to  join  in  military  service, 
and  undoubtedly  they  were  contraband  persons.  The  facts  that  Sere- 
brenick  &  Co.,  the  charterers  of  this  ship,  caused  the  said  Russian  com- 
batants to  embark  in  her  under  false  names,  Pilsener  and  Golschalky, 
as  Germans,  and  gave  them  letters  intrusting  them  with  the  superin- 
tendence of  landing  the  cargo  and  the  payment  of  accounts,  in  order  to 
make  it  appear  that  they  were  business  employees,  and  not  the  enemy's 
combatants,  are  amply  proved  by  the  affidavits,  taken  before  the  orig- 
inal court,  of  the  passenger  Poletika,  the  said  Plenn  and  Sheweniyoff, 
and  of  the  master  of  this  ship,  and  by  the  letters  given  to  Plenn  and 
Sheweniyoff  by  Serebrenick,  and  by  the  charter  party.  Considering  these 
facts,  it  must  be  held  that  the  object  of  this  ship's  voyage  was  the 
transportation  of  combatant  persons.  When  a  ship's  object  of  voyage 
is  the  transportation  of  combatant  persons,  her  confiscation  is  per- 
mitted by  International  Law.  Besides,  the  above-named  documentary 
evidence  proves  that  the  master  of  this  ship  knew .  that  the  said  two 
persons  were  Russian  combatants,  and  even  on  that  ground  alone  this 
ship  may  lawfully  be  confiscated.  Hence,  the  decision  of  the  original 
court  confiscating  this  ship  was  quite  reasonable.  As  to  other  reasons, 
there  is  no  need  of  giving  any  explanation.  The  decision  is  therefore 
given  as  follows: 

This  appeal  is  hereby  dismissed. 

Given  this  2nd  of  the  11th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 


648  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Decision   of   the  Higher  Prize   Court   on   the   Same   Case. 
(Cargo.) 

Published  in  the  Official  Gazette,  Tokyo,  on  Nov.  16,  1908. 

The  following  decision  was  given  on  the  2nd  of  the  11th  month  of 
the  38th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  appeal  case 
of  the  cargo  of  the  British  steamship  Nigretia. 

Decision. 
Case  No.  XLV. 

Petitioner — Alexander    Serebrenick,    a    Russian    subject,    25 

Range  Road,  Shanghai,  China. 
Attorney — S.  Hatakeyama,  Counsellor  at   Law,   18  Hirado 

Machi,  Nagasaki. 
Attorney — T.  Shigeto,  Counsellor  at  Law,  33  Hikichi  Machi, 
Nagasaki. 

In  the  case  of  the  cargo  of  the  British  steamship  Nigretia,  captured 
by  the  Japanese  man-of-war  Tsushima,  on  the  19th  of  the  12th  month 
of  the  37th  year  of  Meiji,  in  N.  lat.  35°  18'  and  E.  long.  129°  SO',  the 
Sasebo  Prize  Court  gave  decision,  on  the  17th  of  the  4th  month  of  the 
38th  year  of  Meiji,  confiscating  70,000  cases  of  kerosene  oil  loaded 
in  the  said  steamship.  Whereas,  S.  Hatakeyama  and  T.  Shigeto,  attor- 
neys for  the  said  petitioner,  Alexander  Serebrenick,  have  filed  an  appeal 
against  the  said  decision,  the  case  has  been  examined  and  the  following 
decision  is  given,  K.  Tsuzuki  and  B.  Ishiwatari,  Public  Procurators  of 
the  Higher  Prize  Court,  taking  part. 

The  appeal  by  S.  Hatakeyama  and  T.  Shigeto,  attorneys  for  the 
petitioner,  against  the  former  decision,  condemning  70,000  cases  of  kero- 
sene oil  loaded  in  the  steamship  'Nigretia,  is  based  upon  the  following 
grounds : 

During  the  11th  month  of  the  37th  year  of  Meiji,  the  petitioner 
entered  into  a  contract  with  a  Russian  merchant,  A.  L.  Kiuotovsky, 
who  had  his  main  office  at  Harbin,  and  a  branch  office  at  Vladivostok, 
with  one  Haymann  as  manager,  for  the  sale  of  150,000  cases  of  kerosene 
oil.  He  bought  the  oil  at  Shanghai  and  made  preparation  for  loading 
it  in  the  steamship  Nordpol,  but  her  licensed  capacity  of  burden  was 
limited  to  90,000  cases.  So  90,000  cases  were  loaded  in  that  ship.  The 
remaining  60,000  cases  were  loaded  in  the  steamship  Nigretia,  together 
with  other  10,000  cases  which  the  petitioner  bought  on  speculation  to 
sell  at  Vladivostok,  and  despatched  for  Vladivostok  on  the  16th  of  the 
12th  month  of  the  same  year.  It  is  true  that  the  petitioner  caused 
Russian  Naval  Lieutenant  Parwell  Mihailovitch  Plenn  and  Sub-Lieu- 
tenant Crandy  Warentiniwich  Sheweniyoff  to  embark  in  the  steamship 


CHAP.  III.]  CONTRABAND   PERSONS.  649 

Nigretia  and  intrusted  them  with  commercial  matters,  believing  that 
the  former  was  a  German,  Friedrich  Pilsener,  and  the  latter  a  German, 
Jan  Golschalky.  But  he  was  entirely  unaware  that  they  were  Russian 
naval  officers,  as  is  proved  by  the  affidavits  of  Samuel  Harrison,  the 
master  of  the  Nigretia,  of  the  said  Plenn  and  of  Sheweniyoff,  and  by 
the  charter  party,  and  by  exhibits  A  No.  1  to  No.  3.  Nevertheless,  the 
original  court  judged  that  the  petitioner  planned  and  executed  the  pro- 
hibited carriage  by  sea,  transporting  two  Russian  naval  officers  under 
the  pretence  that  they  were  his  clerks  or.  supercargo.  This  judgment 
was  founded  on  an  unreasonable  assumption  of  fact,  and  therefore  it 
is  unlawful.  Besides,  the  original  court  took  too.  extensive  a  view  of 
the  penalty  for  prohibited  carriage  by  sea  (unneutral  service),  and 
judged  that  when  the  owner  of  a  cargo  has  participated  in  prohibited 
carriage  by  sea  the  cargo  is  liable  to  confiscation.  As  a  rule,  in  a  case 
of  prohibited  carriage  by  sea,  the  law  of  confiscation  is  applied  in  quite 
a  different  manner  from  the  case  of  the  carriage  of  contraband  goods. 
In  the  former  the  general  principle  is  to  confiscate  the  ship  only  and 
to  release  the  cargo,  while  in  the  latter  the  cargo  only  is  liable  to  con- 
fiscation and  the  ship  is  released.  The  only  exception  to  this  principle 
is  when  ship  and  cargo  belong  to  the  same  owner,  or  when  the  cargo 
has  the  nature  of  enemy  goods,  in  which  cases  both  the  ship  and  the 
cargo  are  liable  to  confiscation.  This  principle  is  admitted  by  inter- 
national usage,  and  embodied  in  the  Japanese  Regulation  Governing 
Captures  at  Sea,  Art.  XLIL,  par.  2,  Art.  XLVL,  and  Art.  XLVII.  There- 
fore it  is  evident  that  the  extensive  view  of  the  original  court  should 
not  be  applied  to  this  case,  in  which  the  owner  of  the  ship  and  the 
master  were  different  from  the  owner  of  the  cargo. 

The  main  points  of  the  response  of  C.  Minakami,  Public  Procurator 
of  the  Sasebo  Prize  Court,  are: 

(1)  The  petitioner  explains  that  though  he  caused  two  Germans, 
Friederich  Pilsener  and  Jan  Golschalky,  to  embark  in  the  steamship 
Nigretia,  in  order  to  manage  the  oil  and  other  business,  he  did  not 
know  that  they  were  Russian  naval  officers.  But  one  must  thoroughly 
know  to  whom  one  gives  charge  of  one's  commercial  business,  and  it 
cannot  be  conceived  that  the  petitioner  would  employ  these  persons 
without  full  knowledge  of  their  names,  nationalities,  and  status.  More- 
over, considering  the  fact  that  the  petitioner  purposely  handed  to  the 
above  two  persons  letters  addressed  to  them,  and  considering  the  word- 
ing of  those  letters :  "  This  is  a  good  opportunity  not  easily  to  be 
obtained  lately.  ...  I  hope  for  your  safe  return  .  .  .,"  it  is  evident 
that  the  petitioner  attempted  to  transport  the  above  two  persons  to 
Vladivostok  knowing  that  they  were  Russian  naval  officers,  but  pre- 
tending they  were  his  clerks  or  supercargo. 


650  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

(2)  The  petitioner  contends  that  when  a  ship  has  committed  the 
offence  of  prohibited  carriage  by  sea  (unneutral  service)  she  may  be 
confiscated,  but  confiscation  of  her  cargo  is  in  violation  of  a  funda- 
mental rule  of  International  Law.  But  it  is  a  rule  of  Interna- 
tional Law  that  a  ship  engaged  in  prohibited  carriage  by  sea  is 
liable  to  confiscation,  and  when  the  owner  of  the  cargo  has  par- 
ticipated in  that  offence  the  cargo  is  also  liable  to  confiscation. 
The  petitioner  being  the  person  who  planned  and  executed  the  trans- 
portation of  the  two  Russian  naval  officers  to  Vladivostok,  under  the 
disguise  of  ordinary  merchants,  as  explained  before,  undoubtedly  par- 
ticipated in  the  offence  of  prohibited  carriage  by  sea,  and  consequently 
the  goods  belonging  to  him  should  reasonably  be  confiscated.  For 
the  above  reasons  this  appeal  should  be  dismissed. 

The  reasons  for  the  decision  by  the  Higher  Prize  Court  are  given 
as  follows: 

The  steamship  Nigretia  started  from  Shanghai  for  Vladivostok,  hav- 
ing on  board  Russian  Naval  Lieutenant  Plenn  and  Sub-Lieutenant 
Sheweniyoff,  and  a  cargo  of  70,000  cases  of  kerosene  oil.  The  fact  that 
Serebrenick  &  Co.,  the  charterers  of  this  ship,  caused  the  said  Russian 
combatants  to  embark  in  her  under  false  names,  Pilsener  and  Gol- 
schalky,  and  as  Germans,  and  gave  them  letters  intrusting  them  with 
the  superintendence  of  landing  the  cargo  and  the  payment  of  accounts, 
in  order  to  make  it  appear  that  they  were  their  business  employees,  and 
not  the  enemy's  combatants,  are  amply  proved  by  the  affidavits,  taken 
before  the  original  court,  of  the  passenger  Poretika,  the  said  Plenn  and 
Sheweniyoff,  and  of  the  master  of  this  ship,  by  the  letters  given  to 
Plenn  and  Sheweniyoff  by  Serebrenick,  and  by  the  charter  party.  Con- 
sidering these  facts,  it  must  be  inferred  that  the  object  of  this  ship's 
voyage  was  the  transportation  of  contraband  persons.  And  the  cargo, 
belonging  to  the  person  who  has  used  a  ship  for  the  special  purpose  of 
transporting  contraband  persons,  may  be  confiscated  according  to  Inter- 
national Law.  -  Hence,  the  former  decision  confiscating  this  cargo  was 
quite  reasonable,  and  the  appeal  is  groundless. 

The  decision  is,  therefore,  given  as  follows: 

This  appeal  is  hereby  dismissed. 

Given  this  2nd  day  of  the  11th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)     The  President   and  Councillors  of  the 
Higher  Prize  Court. 


CHAPTER   IV. 
CONTRABAND    GOODS. 

Case  I.     The  Aphrodite. 
Published  in  the  Official  Gazette,  Tokyo,  on  Aug.  29,  1905. 
Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  4th  day  of  the  5th  month  in 
the  38th  year  of  Meiji,  by  the  Yokosuka  Prize  Court,  in  the  case  of 
the  British  steamship  Aphrodite  and  her  cargo. 

No.  XVII. 

Decision. 
Petitioners — The    Cornhill    Steamship    Company,    No.    81, 

Grace  Church  Street,  London,  England. 
Representative — F.  O.  Edmands,  Master  of  the  steamship 

Aphrodite. 
Attorney — G.  Akiyama,  Counsellor  at  Law,  No.  15,  Uneme 
Cho,   Kyobashi   Ku,  Tokyo. 

In  the  case  of  the  British  steamship  Aphrodite  and  her  cargo,  the 
following  decision  is  given  after  due  consideration: 

Text  of  Decision. 
The  British  steamship  Aphrodite  and  her  cargo,  about  five  thousand 
six  hundred  tons  of  coal,  are  hereby  adjudicated  lawful  prizes. 

Facts  and  Reasonings. 
The  steamship  Aphrodite  of  this  case  is  the  property  of  the  peti- 
tioners, registered  in  London,  England,  and  is  a  merchant  ship  flying 
the  British  flag.  She  took  on  board  at  Cardiff,  England,  about  five 
thousand  six  hundred  tons  of  double  screened  Cardiff  coal,  consigned 
by  the  petitioners,  with  the  object  of  transporting  the  same  to  Vladi- 
vostock,  Russia,  and  having  obtained  a  bill  of  clearance  and  a  bill  of 
health  with  the  statements  "  Consignee  unto  order,"  and  "  Destination 
Saigon,"  left  the  port  of  Cardiff  on  the  22nd  of  December,  1904.  In 
her  log-book,  the  name  of  Saigon  was  stated  as  her  destination;  and 
when   she    called   at    Singapore,   she   obtained    clearance   pretending   to 

651 


652  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 


be  bound  for  Shanghai.  From  the  date  of  leaving  Singapore,  on  the 
8th  of  the  2nd  month  of  this  year  until  the  20th  of  the  same  month, 
the  log-book  gave  her  destination  as  Shanghai,  after  which  it  was 
given  as  Vladivostock.  Taking  a  roundabout  route  she  shaped  her 
course  to  Vladivostock  through  La  Perouse  Straits.  During  her  voyage 
on  the  above  route,  she  was  captured  by  the  Japanese  man-of-war 
Nippon  Maru  in  the  vicinity  of  the  Yetrup  Channel  on  the  6th  of  the 
3rd  month  of  this  year. 

The  above  facts  are  proved  by  the  written  statement  of  Lieutenant 
D.  Nakajima,  representing  the  captain  of  the  Japanese  man-of-war 
yippon  Maru,  by  the  affidavits  of  the  same  officer  and  of  F.  O.  Ed- 
mands,  Master  of  the  steamship  Aphrodite,  by  the  certificate '  of  the 
ship's  nationality,  the  ship's  log-book,  the  bill  of  lading,  the  bill  of 
clearance,  the  bill  of  health,  etc. 

The  main  points  of  the  petition  are: 

The  transportation  of  coal  by  neutral  subjects  to  Vladivostock,  a 
port  of  a  belligerent  state,  is  public  trade  which  neutral  subjects  are 
free  to  carry  on,  and  is  undoubtedly  legitimate  under  International 
Law.  Generally  speaking,  coal  is  not  absolute  contraband  of  war, 
hence  when  it  is  transported '  to  such  a  port  as  Vladivostock  which 
has  two  capacities,  i.  e.,  commercial  and  naval,  it  is  proper  to  regard 
the  coal  as  transported  to  Vladivostock  the  commercial  port  and  not 
intended  for  military  use.  The  decision  in  the  case  of  the  Neptunus, 
captured  during  the  Dutch-English  War  of  1798,  will  clearly  show  the 
correctness  of  the  above  view.  Besides,  goods  like  this  cargo  are  not 
limited  to  military  uses  but  they  are  widely  consumed  for  industrial 
purposes.  Even  supposing  that  this  cargo  was  enemy  goods,  being  in 
transit  to  the  enemy's  territory,  it  was  under  the  protection  of  a. 
neutral  flag  and  therefore,  according  to  the  Declaration  of  Paris  of 
1856,  not  liable  to  confiscation.  The  destination  of  this  ship  was 
Vladivostock,  Russia,  nevertheless,  the  name  of  that  port  was  not 
mentioned  in  the  bills  of  clearance  obtained  in  the  places  of  her  de- 
parture and  call,  but  the  name  of  Saigon  and  Shanghai  were  given. 
However,  it  may  be  presumed  that  this  was  not  from  any  evil  inten- 
tion to  evade  capture,  for  the  bill  of  lading  stated  that  the  cargo  was 
to  be  delivered  to  order  at  Vladivostock,  and  the  log-book  from  the 
21st  of  the  2nd  month  until  the  2nd  of  the  3rd  month  of  this  year 
stated  that  this  ship  is  bound  for  Vladivostock  from  Singapore.  More- 
over, very  troublesome  steps  were  necessary  to  obtain  clearance  for 
Vladivostock,  so  the  real  destination  was  concealed  from  the  authori- 
ties merely  in  order  to  obtain  clearance  easily.  The  master's  pencil 
writing  over  his  signature  on  the  bill  of  lading  "  Coal,  the  cargo>  is 
on  the  owner's  account  until  delivered  to  the  Russian  Navy,"  is  quite 


CHAP.  IV.]  CONTRABAND  GOODS.  653 

incomprehensible.  He  had  no  authority  to  make  such  writing,  and 
it  can  have  no  effect  even  if  he  was  in  his  normal  senses  in  making  it. 
Consequently,  the  owner  should  not  be  held  responsible  for  the  above 
act  of  the  master.  The  master  also  stated  that  the  cargo  of  this  ship 
is  the  owner's  property,  but  that  statement  was  only  his  supposition, 
and  it  is  evident  that  the  owners  of  the  cargo  are  Harris  and  Dixon 
Company  of  London.  For  the  above  reasons,  judgment  to  release  this 
ship,  as  well  as  her  cargo,  should  be  given. 

After  due  consideration  the  Court  concludes  as  follows: 
Vladivostock  is  an  important  Russian  naval  port  in  the  Orient  and 
the  base  of  her  squadron;  and  it  is  a  conspicuous  fact  that  since  the 
outbreak  of  the  Russo-Japanese  War,  the  Russian  Government  has 
made  that  place  one  of  her  bases  of  supplies,  and  has  taken  all  means 
to  accumulate  there  all  sorts  of  war  necessaries,  and  that  ordinary 
trade  has  been  almost  suspended.  Hence,  when  goods  like  coal,  provi- 
sions, etc.,  which  may  be  contraband  of  war  according  to  circumstances, 
are  transported  to  Vladivostock,  they  must  be  regarded  as  intended 
for  military  purposes,  unless  there  is  proof  to  the  contrary.  Moreover, 
the  cargo  of  this  ship  being  Cardiff  coal  of  best  selection  which  is 
used  in  the  Orient  solely  by  navies,  was  undoubtedly  intended  for 
military  use,  and  consequently  it  may  lawfully  be  regarded  as  contra- 
band of  war.  The  Neptunus  case  cited  by  the  attorney  for  the  peti- 
tioners is  not  a  precedent  for  this  case.  On  the  contrary,  the  reason 
for  the  decision  given  in  that  case  may  be  taken  as  a  reason  for  in- 
ferring the  cargo  of  this  ship  to  be  contraband  of  war.  For  the  port 
of  Amsterdam  at  that  time  was  principally  a  commercial  port,  quite 
different  from  the  present  condition  of  Vladivostock.  Brest  mentioned 
in  that  decision  rather  resembled  the  present  condition  of  Vladivostock. 
The  fact  that  before  her  departure  from  Cardiff,  Vladivostock  had  been 
definitely  fixed  as  this  ship's  destination,  and  yet  she  obtained  bills  of 
clearance  and  of  health  from  the  Cardiff  authorities  under  the  pre- 
tence of  going  to  Saigon,  a  neutral  port,  and  also  made  the  same  false 
statement  in  her  log-book;  and  the  fact  that  she  obtained  at  Singa- 
pore a  bill  of  clearance  for  Shanghai,  pretending  to  be  bound  for  that 
port ;  and  the  fact  that  from  her  departure  from  Singapore  on  the 
8th  of  the  2nd  month  of  this  year  until  the  20th  of  the  same  month, 
her  log-book  gave  her  destination  as  Shanghai,  but  instead  of  going 
towards  Saigon  or  Shanghai,  she  intentionally  took  a  roundabout  route 
and  shaped  her  course  to  Vladivostock  through  La  Perouse  Straits ; 
these  facts  cannot  be  taken  as  excusable  carelessness  or  as  means  re- 
sorted to  for  the  purpose  of  obtaining  facilities  in  navigation  or  in 
official  procedures,  but  must  be  held  as  devices  to  conceal  her  real  des- 
tination and  to  evade  capture.     The  mere  fact  that  the  bill  of  lading 


654  NEW   CASES  ON   PRIZE   LAW.  [PART  V. 

and  a  part  of  the  log-book  contained  the  statement  of  her  real  destina- 
tion, is  no  ground  for  acquitting  this  ship  from  the  charge  of  fraud. 
In  short,  the  steamship  Aphrodite  transported  contraband  of  war  by 
false  means.  When  a  ship  commits  such  fraudulent  acts  her  confisca- 
tion, together  with  her  contraband  cargo,  is  allowed  by  the  theory  and 
usage  of  International  Law.  For  the  above  reasons  this  ship  as  well 
as  her  cargo  should  be  confiscated,  and  as  to  the  other  contentions  of 
the  petitioners  there  is  no  necessity  of  giving  any  explanation.  The 
decision  is  therefore  given  as  in  the  text. 

Given  this  4th  day  of  the  5th  month  of  the  38th  year  of  Meiji 
at  the  Yokosuka  Prize  Court,  the  Public  Procurator,  S.  Uchida,  being 
present. 

(Signed)     The  President  and  Councilors  of  the 
Yokosuka  Prize  Court. 


Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  Aug.  31,  1905. 

The  following  decision  was  given  on  the  6th  of  the  8th  month  of 
the  38th  year  of  Meiji  by  the  Higher  Prize  Court  in  the  case  of  the 
British  steamship  Aphrodite  and  her  cargo: 

Case  No.  LXIV. 

Decision. 

Petitioners — The     Cornhill     Steamship     Co.,     81,     Grace 

Church,  London,  England. 
Representative — F.  0.  Edmands,  Master  of  the  Steamship 

Aphrodite. 
Attorney — G.    Akiyama,    Counsellor    at    Law,    15,    Uneme 

Cho,  Kyobashi  Ku,  Tokyo. 

In  the  case  of  the  British  steamship  Aphrodite  and  her  cargo,  cap- 
tured by  the  Japanese  man-of-war  Nippon  Maru,  near  Yetrup  Channel 
on  the  6th  of  the  3rd  month  of  the  38th  year  of  Meiji,  the  Yokosuka 
Prize  Court  gave  decision  on  the  4th  of  the  5th  month  of  the  38th 
year  of  Meiji,  confiscating  the  said  ship  and  her  cargo,  about  five 
thousand  six  hundred  tons  of  Cardiff  coal.  Whereas,  G.  Akiyama, 
attorney  of  F.  O.  Edmands,  the  representative  of  the  said  petitioners, 
the  Cornhill  Steamship  Co.,  has  filed  an  appeal  against  the  said  de- 
cision, the  case  has  been  tried  and  the  following  decision  is  given,  K. 
Tsuzuki  and  B.  Ishiwatari,  Public  Procurators  of  the  Higher  Prize 
Court,  taking  part. 


CHAP.  IV.]  CONTRABAND  GOODS.  655 

The  main  points  and  reasons  of  appeal  stated  by  G.  Akiyama,  the 
attorney  for  the  petitioners,  are: 

(1)  As  the  cargo  of  this  ship  was  transported  to  Vladivostock, 
the  only  Russian  commercial  port  in  the  Orient,  and  intended  for 
peaceful  purposes,  it  is  unreasonable  to  regard  it  as  contraband  of 
war.  On  the  other  hand,  the  ship,  which  carried  the  said  cargo,  be- 
longs to  a  different  person  from  the  owner  of  the  cargo,  and  there  is 
nothing  to  prove  that  she  took  her  cargo  on  board  by  false  means,  so 
she  should  not  be  confiscated,  even  though  her  cargo  may  be  regarded 
as  contraband  of  war. 

(2)  The  punishment  for  carrying  contraband  of  war  is,  as  a  rule, 
only  to  forfeit  the  contraband  cargo,  when  it  does  not  belong  to  the 
owner  of  the  ship,  and  the  ship  merely  suffers  the  loss  of  time,  freight 
and  expenses,  but  is  not  subject  of  confiscation.  Even  though  con- 
traband of  war  was  loaded  by  fraudulent  means,  she  is  not  liable  to 
confiscation,  unless  there  is  proof  that  her  owner  colluded  in  the  fraud. 
The  above  being  a  principle  of  modern  International  Law,  is  adhered 
to  by  England,  and  the  Japanese  Regulations  Governing  Captures  at 
Sea  are  also  founded  on  this  principle.  In  the  present  case,  there  is 
nothing  to  show  that  the  owner  colluded  in  the  fraudulent  act,  yet  the 
original  Court  decreed  her  confiscation  together  with  her  cargo,  re- 
garding it  as  contraband  of  war,  without  investigating  whether  or  not 
the  owner  was  guilty  of  collusion.  This  decision  is  therefore  unrea- 
sonable. 

(3)  The  mere  fact  that  the  ship's  final  destination  was  not  stated 
in  the  bill  of  clearance  and  the  bill  of  health  cannot  be  regarded  as 
fraud  sufficient  to  confiscate  the  ship.  In  order  to  prove  that  charge, 
the  papers  must  be  made  out  with  evil  intention  of  evading  capture 
by  a  belligerent  man-of-war,  and  they  must  be  good  enough  for  the 
purpose.  In  the  present  case,  there  is  nothing  to  show  that  the  ship's 
papers  were  prepared  with  the  above  intention.  On  the  contrary,  the 
absence  of  that  intention  may  be  seen  by  the  statement  of  Vladivostock 
as  her  destination  in  the  bill  of  lading,  and  the  express  statement, 
"  bound  for  Vladivostock  from  Singapore,"  entered  in  her  log-book 
from  the  21st  of  the  2nd  month  to  the  2nd  of  the  3rd  month  of  this 
year.  The  omission  of  the  name  of  Vladivostock  as  her  destination 
in  the  bill  of  clearance  or  in  the  bill  of  health  was  merely  in  order 
to  avoid  troublesome  procedures  with  the  British  authorities.  Mr. 
Hall  says  that  false  ship's  papers  are  objectionable  only  when  they 
were  made  out  for  the  purpose  of  deluding  a  belligerent  captor  and 
when  the  captor's  right  would  be  infringed  if  such  papers  were  taken 
as  true ;  and  that  in  any  other  case  such  papers  will  be  disre- 
garded.    According  to  this  opinion,  the  papers  of  this  ship  cannot  be 


656  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

regarded   as   containing  fraud   sufficient   to  deserve  the   confiscation   of 
the  ship. 

(4)  According  to  the  principle  adopted  in  the  Japanese  Regula- 
tion Governing  Captures  at  Sea,  coal  is  regarded  as  contraband  of  war 
only  when  it  is  certainly  intended  for  the  military  purposes  of  the 
enemy.  Now  granting  this  as  in  conformity  with  the  fundamental 
principle  of  International  Law,  Vladivostock,  the  destination  of  this 
ship,  is  the  only  Russian  commercial  port  as  well  as  her  only  naval 
port  in  the  Orient.  Therefore  it  would  be  unreasonable  to  draw  the 
hasty  conclusion  that  coal,  which  is  not  absolute  contraband  of  war, 
is  intended  for  naval  use,  even  when  bound  for  that  place.  Such  a 
cargo  should  be  dealt  with  according  to  the  precedent  of  the  Neptunus 
case  in  the  Dutch- English  War  of  1798  and  be  taken  as  consigned  to 
Vladivostock,  the  commercial  port,  and  intended  for  peaceful  purposes. 
It  is  an  error  of  the  original  Court,  both  in  the  recognition  of  fact 
and  the  application  of  precedent  that  it  regarded  Vladivostock  as 
a  purely  naval  port  and  compared  that  place  to  Brest,  the  naval  port 
mentioned  in  the  decision  of  the  Neptunus  case.  Besides,  the  original 
Court  ignored  the  fact  that  ordinary  trade  is  still  being  carried  on 
in  Vladivostock,  and  it  also  held  that  Cardiff  coal  is  chiefly  used  in 
the  Orient  by  navies,  notwithstanding  the  fact  that  this  coal  is  con- 
sumed for  industrial  as  well  as  military  purposes  both  in  the  Occident 
and  in  the  Orient.  These  conclusions  were  not  founded  on  any  proof 
and  are  therefore  unreasonable. 

(5)  With  regard  to  the  disposal  of  conditional  contraband  of  war 
in  a  neutral  ship,  the  English  usage  is  to  confiscate  the  same  on  the 
payment  of  compensation,  and  according  to  the  Continental  principle 
decided  by  the  Institute  of  International  Law,  the  belligerent  is  only 
allowed  to  seize  on  giving  compensation  or  to  make  prior  purchase 
(pre-emption).  It  would  be  very  harsh  treatment,  if  Japan  should 
confiscate  goods  unconditionally,  without  regard  to  the  above  men- 
tioned principle  and  usage.  The  attorney  for  the  petitioners  therefore 
prays  that  due  caution  may  be  taken  in  dealing  with  conditional  con- 
traband, the  property  of  neutrals,  seeing  that  the  Japanese  prize  regu- 
lations are  founded  on  the  English  principle. 

For  the  above  reasons,  the  decision  of  the  original  Court  should 
be  cancelled  and  judgment  given  to  release  this  ship  and  her  cargo. 

The  main  points  of  the  response  of  Y.  Kobayashi,  Public  Procu- 
rator of  the  Yokosuka  Prize  Court,  are: 

(1)  That  this  ship  is  the  property  of  the  petitioners,  the  Cornhill 
Steamship  Co.,  is  an  undisputed  fact;  and  it  may  be  presumed  from 
the  absence  of  any  charter  party  and  from  the  statements  of  the 
master   and   the  bill   of  lading  that  the  consignors   of  the   cargo   are 


CHAP.  IV.]  CONTRABAND  GOODS.  657 

the  same  company.  When  the  ship's  owner  is  the  consignor  of  her 
cargo,  it  is  proper  to  hold  that  he  is  the  owner  of  the  cargo,  unless 
proved  otherwise.  Moreover,  the  cargo  of  this  case  is  double-screened 
Cardiff  coal  of  best  selection  which  is  rarely  used  in  the  Orient  ex- 
cept by  navies,  and  its  destination,  Vladivostock,  is  the  only  naval 
base  of  the  enemy  in  the  Orient.  If  all  these  facts  are  considered, 
there  is  not  the  least  doubt  that  this  cargo  was  intended  for  the  use 
of  the  enemy's  navy.  Besides,  this  ship  obtained  clearance,  pretend- 
ing, when  leaving  England,  the  destination  of  the  cargo  to  be  Saigon, 
and  pretending  it  to  be  Shanghai  when  leaving  Singapore;  and  she 
also  made  similar  false  statements  in  her  log-book. 

(2)  The  papers  of  this  ship  which  contain  the  false  statement 
about  her  destination  are  her  log-book,  bills  of  clearance  and  of  health 
obtained  in  different  ports.  Moreover,  this  ship  belongs  to  the  same 
owner  as  the  captured  ship  Venus,  and  the  nature  of  her  cargo,  the 
place  of  her  destination,  as  well  as  the  false  means  taken  by  this 
ship,  are  exactly  the  same  as  the  above-named  ship.  Hence  it  must 
be  concluded  that  the  false  statement  contained  in  the  bills  of  clear- 
ance, etc.,  were  made  to  the  authorities  by  her  owner  or  his  representa- 
tive, as  was  the  case  with  the  steamship  Venus;  and  consequently 
there  is  no  doubt  that  the  owner  was  in  collusion  in  all  the  fraud 
committed  by  this  ship. 

(3)  A  ship's  bill  of  clearance  and  the  bill  of  health  are  im- 
portant papers  which  a  captor  must  examine  in  order  to  ascertain  her 
destination.  There  was  fraud  in  those  papers,  and  false  statements 
were  also  made  in  this  ship's  log-book.  Hence  it  is  beyond  any  doubt 
that  these  false  means  were  taken  for  the  purpose  of  deceiving  the 
captor. 

(4)  It  is  a  conspicuous  fact  that  double-screened  Cardiff  coal  of 
best  selection,  the  cargo  of  this  ship,  is  rarely  consumed  in  the  Orient 
for  any  purpose  other  than  naval,  and  Vladivostock  is  undoubtedly 
the  enemy's  naval  base,  even  granting  it  is  also  a  commercial  port. 
Therefore  this  cargo  cannot  but  be  taken  as  intended  for  the  use  of 
the  enemy's  navy. 

( 5 )  It  is  admitted  by  modern  International  Law  that  a  belligerent 
has  the  right  to  confiscate  contraband  goods,  no  matter  if  they  can 
be  used  in  peace  as  well  as  in  war.  Payment  of  compensation  in  con- 
fiscating conditional  contraband  of  war  is  a  matter  of  special  treaty 
or  special  policy,  and  not  yet  entitled  to  observance  as  the  rule  of 
International  Law.  For  the  aforesaid  reasons,  the  appeal  is  ground- 
less,  so   it   should    be   dismissed. 

The  reasons  for  the  decision  of  the  Higher  Prize  Court  are  given  as 
follows: 


658  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

(1)  Vladivostock,  being  an  important  Russian  naval  port,  it  was 
a  conspicuous  fact  that  the  Russian  Government  made  it  the  base  of 
her  squadron  from  the  outbreak  of  the  Russo-Japanese  War,  and  a 
depot,  where  arms,  provisions,  coal  and  other  war  material  were 
abundantly  accumulated,  and  that  ordinary  trade  was  almost  suspended 
there.  So  it  is  not  unreasonable  that  the  original  Court  regarded  the 
coal,  consigned  for  Vladivostock,  as  contraband  of  war  intended  for 
the  use  of  the  Russian  forces.  Moreover,  being  Cardiff  coal  of  best 
selection,  which  is  of  high  cost  in  the  Orient  and  rarely  demanded 
except  by  navies  in  war  time,  it  is  beyond  any  doubt  that  this  coal 
was  intended  for  the  Russian  navy.  The  appellant  argues  that  the 
precedent  of  the  Neptunus  case  should  be  followed  and  this  cargo  be 
regarded  as  intended  for  peaceful  purposes.  But  the  nature  of  this 
cargo  and  the  circumstances  of  its  destination  are  entirely  different 
from  those  in  the  Neptunus  case,  so  it  is  needless  to  say  that  that 
case  cannot  be  followed  as  a  precedent. 

(2)  It  is  the  established  rule  of  International  Law  that  all  con- 
traband of  war  is  liable  to  confiscation.  Pre-emption,  confiscation  with 
compensation,  and  seizure  on  condition  of  giving  compensation  as  de- 
sired by  the  appellant,  are  matters  of  special  treaty  or  special  usage 
or  nothing  more  than  the  doctrines  of  certain  scholars,  and  not  yet 
admitted  as  the  rule  of  International  Law.  So  the  non-observance 
of  such  usage  or  doctrines  by  the  original  Court  cannot  be  regarded 
as  unlawful. 

(3)  When,  as  in  this  case,  the  object  of  a  ship's  voyage  is 
the  transportation  of  contraband  of  Avar,  the  ship  may  be  confis- 
cated according  to  International  Law,  and  this  Higher  Prize  Court 
deems  that  penalty  reasonable.  Besides,  the  whole  cargo  of  this 
ship  was  contraband  of  war,  and  although  the  owner  of  this  ship 
gave  order  to  the  master  at  the  time  of  her  departure  to  proceed  to 
Vladivostock,  a  false  destination  was  given  in  her  log-book,  bill  of 
clearance,  etc.,  that  is  to  say,  she  transported  contraband  of  war  by 
false  means. 

For  the  reasons  given,  (1st,  2nd  and  3rd),  the  decision  of  the 
original  Court  to  confiscate  this  ship  and  her  cargo  is  quite  lawful, 
and  as  to  the  other  points  contended  by  the  appellant,  there  is  no  need 
of  giving  any  explanation. 

The  decision  is  therefore  given  as  follows: 

The  appeal  in  this  case  is  hereby  dismissed. 

Given  this  8th  of  the  8th  month  of  the  38th  year  of  Meiji  at  the 
Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  op  the 
Higher  Prize  Court. 


CHAP.  IV.]  CONTRABAND  GOODS.  659 

Case  II.     The  Bawtry. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Dec.  15,  1905. 
Decision  of  the  Sasebo  Prize  Court. 

The  following  decision  was  given  on  the  10th  of  the  7th  month  of 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court,  in  the  case  of  the 
British  steamship  Bawtry. 

Petition  No.  1. 

Decision. 
Petitioner — The  Imperial  Steamship  Co.,  L'm'd,  14,  Cross 
St.,    Manchester,    England.      Sivewright,    Bacon    &    Co., 
agents  of  the  above. 
Representative — W.   C.   Bacon,   an   Englishman. 
Advocate — G.    Akiyama,    Counsellor    at    Law,    75,    Yama- 
shita  Cho,  Yokohama. 

In  the  case  of  the  British  steamship  Bawtry,  the  following  decision 
has  been  given: 

Text  of  the  Decision. 
The  steamship  Bawtry  is  hereby  confiscated. 

Facts  and  Grounds  of  the  Decision. 

The  steamship  Baictry  is  the  property  of  the  Imperial  Steamship 
Co.,  Ltd.,  the  petitioner,  and  is  a  merchantman  engaged  in  the  trans- 
portation of  goods,  flying  the  British  flag.  The  ship  was  chartered  on 
the  15th  of  the  12th  month  of  the  37th  year  of  Meiji,  at  Shanghai, 
by  Diederichsen,  Jebsen  &  Co.,  and  took  in,  at  Hongkong  and  Kiaochau. 
materials  for  building  and  equipping  vessels,  railroad  materials,  provi- 
sions, drinks,  etc.,  together  with  a  large  quantity  of  sundry  goods.  She 
left  Kiaochau,  on  the  14th  of  the  1st  month  of  the  38th  year  of  Meiji, 
bound  for  Vladivostock,  with  bills  of  lading,  manifest,  etc.,  in  which 
she  pretended  that  her  destination  was  Hakodate,  with  the  object  of 
evading  capture  by  a  Japanese  man-of-war.  While  on  her  way  to 
Vladivostock,  her  destination,  on  the  17th  of  the  same  month,  she  was 
captured  by  the  Japanese  man-of-war  Tokiwa,  in  N.  Lat.  34°  58"  and 
E.  Long.  130°  38',  as  engaged  in  the  transportation  of  contraband  of 
war. 

The  above  facts  are  clear  from  the  statement,  submitted  by  Lieu- 
tenant Y.  Torisaki,  representative  of  the  captain  of  the  Tokiwa-,  from 
the  testimony  given  by  Harry  Ratcliff  Shotton,  Master  of  the  steam- 
ship Bawtry  and  Otto  Meyer,  supercargo;   and  from  the  certificate  of 


660  NEW   CASES   ON    PRIZE   LAW.  [PART  V. 

the  ship's  nationality,  the  deck  journal,  the  charter  party,  the  bills  of 
lading,  the   manifest,  etc. 

The  purport  of  the  plea  of  the  petitioner's  advocate  is  as  follows: 
The  ship  was  chartered  by  Diederichsen,  Jebsen  &  Co.,  and  un- 
dertook to  transport  a  cargo  to  Vladivostock.  That  cargo  was  not 
the  property  of  the  owner,  and  if  there  were  contraband  goods  on 
board,  the  ship  should  not  be  punished  with  confiscation,  unless  there 
is  proof  that  the  owner  shipped  them  by  fraudulent  means.  Moreover, 
the  entry,  in  some  of  the  ship's  papers,  of  Hakodate  as  the  port  of 
destination,  was  the  act  of  the  master  or  of  the  consignor,  and  as 
the  owner  took  no  part  in  it,  it  is  not  responsible.  The  advocate, 
therefore,  requests  that  the  steamship  be  released. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  as  follows: 
The  ship  under  consideration  undertook  the  transportation  of  con- 
traband of  war,  stating  a  false  destination,  with  the  object  of  evad- 
ing capture  by  a  Japanese  man-of-war.  Assuming  that  the  deceit  was 
the  act  of  the  master,  the  owner  cannot  escape  responsibility,  for  the 
master  undertook  the  business  as  his  representative.  The  ship  should, 
therefore,  be  confiscated. 

After  due  consideration  the  Court  concludes  as  follows: 
The  penalty  for  transportation  of  contraband  of  war  is  limited  in 
ordinary  cases  to  the  confiscation  of  the  cargo,  but  when  fraudulent 
means  are  used,  in  order  to  evade  capture  by  a  belligerent,  the  ship 
is  forfeited,  together  with  the  cargo.  This  is  generally  recognised  in 
the  rules  and  usage  of  International  Law.  The  steamship  Baiotry  at- 
tempted to  import  into  Vladivostock,  a  Russian  naval  base,  materials 
for  building  and  equipping  ships,  provisions,  drinks,  railroad  materials, 
etc.;  and  from  the  fact  that  she  stated  her  destination  as  Hakodate, 
it  is  very  clear  that  she  undertook  the  transportation  of  contraband 
of  war  by  fraudulent  means.  And  if  fraudulent  means  are  used  in 
the  transportation  of  contraband  of  war,  the  ship  is  liable  to  confisca- 
tion, whether  the  contraband  goods  are  the  property  of  the  owner  of 
the  ship  or  not,  and  whether  the  owner  himself  loaded  the  ship  with 
the  goods  by  fraudulent  means  or  not.  Again,  the  petitioner's  ad- 
vocate argues  that,  as  the  deceit  was  the  act  of  the  master  or  the 
consignor,  in  which  the  owner  took  no  part,  the  owner  is  not  respon- 
sible for  it.  But  the  statement  of  a  false  destination  in  the  bills 
of  lading,  the  manifest,  etc.,  was,  from  the  nature  of  the  case,  and 
from  the  master's  confession,  clearly  the  act  of  the  master.  And  if 
it  was  the  act  of  the  master,  the  owner,  whose  representative  the 
master  is,  must  be  responsible  for  it.  Therefore,  the  decision  as  stated 
in  the  text,  has  been  given. 

Given  this  10th  day  of  the  7th  month  of  the  38th  year  of  Meiji, 


CHAP.  IV.]  CONTRABAND   GOODS.  661 

at  the  Sasebo  Prize  Court,  the  Public  Procurator,  S.  Yamamoto,  tak- 
ing part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  Dec.  16,  1905. 
The   following  decision   was  given,  on  the   30th  of  the   11th   month 
of- the  38th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  case  of 
the  British  steamship  Bawtry. 

Case  No.  LXXXIII. 

Decision. 
Petitioner — The    Imperial    Steamship    Co.,    Ltd.,    14,    Cross 
Str.,    Manchester,    England.      Sivewright,    Bacon    &    Co., 
Agents  of  the  above. 
Representative — W.  C.  Bacon. 

Advocate — G.  Akiyama,  Counsellor  at  Law,  75,  Yamashita 
Cho,  Yokohama. 
A  protest  has  been  filed  by  G.  Akiyama,  advocate  of  W.  C.  Bacon, 
representative  of  the  petitioners,  the  Imperial  Steamship  Co.,  L'm'd, 
against  the  decision  of  the  Sasebo  Prize  Court,  given  on  the  10th  of 
the  7th  month  of  the  38th  year  of  Meiji,  in  the  case  of  the  British 
steamship  Bawtry,  which  was  captured  by  the  Japanese  man-of-war 
Tokiwa,  on  the  17th  of  the  1st  month  of  the  38th  year  of  Meiji,  in  N. 
Lat.  34°  58'  and  E.  Long.  130'  28°.  The  original  decision  condemned 
the  ship.  The  protest  has  been  tried  before  this  Court,  Public  Procura- 
tors K.  Tsuzuki  and  B.  Ishiwatari  taking  part. 

The  purport  of  the  protest  filed  by  the  petitioners'  advocate,  G. 
Akiyama,  is  as  follows: 

(1)  The  original  Court  has  inflicted  the  punishment  of  confisca- 
tion upon  the  ship,  as  having  taken  on  board  contraband  of  war  by 
fraudulent  means.  On  examining  the  act  which  was  regarded  by  the 
original  Court  as  fraudulent,  the  decision  says  that  in  the  bills  of 
lading  and  the  manifest,  the  destination  of  the  ship  was  falsely  stated 
as  Hakodate,  no  mention  being  made  of  Vladivostock,  the  real  destina- 
tion, and  that  this  was  the  fraudulent  means  contrived  to  evade  cap- 
ture by  Japanese  men-of-war.  But  in  order  to  confiscate  a  ship,  as 
guilty  of  fraud,  there  must  be  collusion  between  the  owner  and  the 
shipper  in  contriving  to  delude  a  captor  and  to  transport  contraband 
of  war;  and  the  means  used  must  be  calculated  to  achieve  the  object. 
In   the   case   under    consideration,  the   owner   chartered   the    vessel    at 


662  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Shanghai  to  Diederichsen,  Jebsen  &  Co.,  to  be  employed  for  the  trans- 
portation of  sundry  goods  to  Vladivostock,  which  fact  is  clear  from 
the  charter  party.  In  the  bills  of  lading  and  manifest,  the  ship's 
destination  was  stated  as  Hakodate  instead  of  Vladivostock.  But  it 
is  very  clear  from  various  records  regarding  this  case,  that  those  docu- 
ments were  prepared  by  the  master  and  the  charterer  or  the  shippers, 
and  the  owner  had  no  part  in  the  deceit.  It  is  true,  that  the  master 
is  always  considered  as  the  representative  of  the  owner,  but  as  has 
been  argued  by  Grotius  and  other  great  scholars  and  as  is  recognised 
in  modern  International  Law,  the  owner  should  not  be  held  respon- 
sible for  such  unlawful  and  arbitrary  acts  of  the  master  as  in  this 
case.  And  were  it  admitted  that  the  owner  was  responsible  for  this 
act  of  the  master,  the  ship's  destination  to  Vladivostock  was  clearly 
stated  in  the  charter  party,  and  the  false  statements  in  the  bills  of 
lading  and  the  manifest  were  not  calculated  to  evade  capture.  Con- 
sequently, the  ship  cannot  be  said  to  be  guilty  of  fraud. 

(2)  The  goods  on  board  this  ship  were  not  absolutely  contraband, 
but  contraband  only  if  intended  for  the  enemy's  military  use.  The 
original  Court  considered  these  goods  contraband,  on  the  ground  that 
they  were  destined  to  Vladivostock,  a  base  of  the  Russian  navy.  Vladi- 
vostock is  a  Russian  naval  port,  but  at  the  same  time  it  is  the  only 
Russian  commercial  port  in  the  East.  In  case  any  goods,  such  as 
those  under  consideration,  which  are  useful  both  in  peace  and  in  war, 
are  in  transit  to  a  port  like  Vladivostock,  it  is  more  proper,  under 
International  Law,  to  consider  them  as  destined  to  Vladivostock  the 
commercial  port  and  intended  for  peaceful  purposes.  The  ship  should, 
therefore,  be  released. 

The  gist  of  the  answer  of  C.  Minakami  and  S.  Yamamoto,  Public 
Procurators  of  the  Sasebo  Prize  Court,  to  the  above  protest,  is  as 
follows : 

In  case  a  neutral  vessel  transports  contraband  of  war,  a  belligerent 
may  seize  the  vessel,  and  confiscate  the  contraband  goods  and  all  non- 
contraband  goods  belonging  to  the  same  owner  as  the  contraband 
goods;  and  when  the  vessel  carries  false  papers  or  gives  a  false  destina- 
tion or  it  is  the  property  of  the  owner  of  the  contraband  goods,  the 
penalty  of  confiscation  extends  to  the  vessel.  This  is  the  principle, 
recognised  alike  in  the  theory  and  precedents  of  International  Law. 
In  the  case  under  consideration,  over  one-half  of  the  goods  were  shipped 
by  the  charterers,  Diederichsen,  Jebsen  &  Co.,  who,  in  order  to  evade 
capture  by  Japanese  men-of-war,  colluded  with  the  master,  and  in  the 
bills  of  lading  and  manifest,  falsified  the  destination  as  Hakodate. 
This  is  very  clear,  and  as  a  means  of  deceit  it  must  be  considered  to 
be  of  the  gravest  nature.     Now,   according  to  law,   the   owner  is   re- 


CHAP.  IV.]  CONTRABAND  GOODS.  663 

sponsible  for  the  acts  of  the  master.  In  the  case  under  consideration, 
the  master's  attempt  to  evade  capture  by  Japanese  men-of-war  was 
made  for  the  benefit  of  the  owner,  and  the  owner  cannot,  of  course, 
escape  responsibility,  on  the  ground  that  he  gave  no  such  special  orders 
to  the  master.  Again,  Vladivostock,  at  present,  is  quite  different  in 
its  conditions  from  Amsterdam  of  the  time  of  the  Dutch-English  War. 
Since  the  outbreak  of  the  Japanese-Russian  War  and  especially  since 
the  fall  of  Port  Arthur,  Vladivostock  has  lost  all  the  characteristics 
of  a  commercial  port.  Concerning  this,  the  master  states  that  he  un- 
derstands Vladivostock  to  be  at  present  an  important  depot  for  the 
Russian  Army  and  Navy.  Moreover,  Diederichsen,  Jebsen  &  Co.,  the 
charterers  of  this  ship,  had  once  attempted  to  run  the  blockade  of 
Port  Arthur  with  the  steamship  Veteran,  and  it  is  very  clear  that 
the  firm  attempted  this  time  to  make  a  large  profit  by  transporting 
contraband  of  war.  The  original  Court  was,  therefore,  right  in  con- 
fiscating the  ship,  and  the  Public  Procurators  think  that  this  protest 
should  be  rejected. 

The  decision  of  this  Court  is  explained  as  follows: 

(1)  Since  the  destination  of  this  ship  was  Vladivostock,  the  arms 
and  materials  for  building  and  equipping  ships  on  board  are  clearly 
contraband  of  war.  Moreover,  Vladivostock  is  an  important  Russian 
naval  port.  Since  the  outbreak  of  this  war,  Russia  has  made  it  not 
only  the  base  of  her  squadron,  but  also  a  depot  where  she  has  been 
collecting  arms,  provisions,  coal,  and  other  warlike  stores,  and  trade 
there  has  been  almost  suspended.  This  is  a  conspicuous  fact,  and 
consequently,  provisions,  railroad  materials,  etc.,  on  board  this  ship, 
must  be  considered  contraband  of  war,  being  intended  for  Russian 
military  use.  The  advocate  argues  that  the  cargo  of  this  ship,  fol- 
lowing the  precedent  of  the  Neptunus  case,  should  be  regarded  as  in- 
tended for  peaceful  purposes.  But  that  case  cannot  be  taken  as  a  pre- 
cedent, either  for  the  absolutely  contraband  goods  mentioned  above, 
or  for  the  conditionally  contraband  goods,  because  the  Neptunus  case 
is  quite  different  from  this  case,  in  the  conditions  of  the  place  of 
destination. 

(2)  When  the  object  of  a  ship,  as  in  this  case,  is  the  transporta- 
tion of  contraband  of  war,  the  ship  is  liable  to  confiscation.  This  is 
recognised  in  International  Law,  and  this  Court  considers  it  to  be 
fair  and  just.  For  stronger  reason,  this  ship  is  liable  to  confiscation, 
because,  notwithstanding  that  her  voyage  to  Vladivostock  was  fixed 
before  she  left  Shanghai,  the  false  destination  of  Hakodate  was  men- 
tioned in  the  bills  of  lading  and  manifest,  that  is  to  say,  she  engaged 
in  the   transportation  of   contraband   of  war,  using   fraudulent   means. 

As  has  been  explained  in   ( 1 )   and   ( 2 )  the  original  Court  was  right 


664  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

in  confiscating  this  ship,  and  the  protest  has  no  ground.     The  decision 
of  this  Court  is  therefore  as  follows: 
This   protest  is   hereby  rejected. 

Given  this  30th  day  of  the  11th  month  of  the  38th  year  of  Meiji, 
at  the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 


Case  III.     The  M.  S.  Dollar. 

Published  in  the  Official  Gazette,  Tokyo,  on  Sept.  11,  1905. 

Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  28th  day  of  the  4th  month 
in  the  38th  year  of  Meiji,  by  the  Yokosuka  Prize  Court  in  the  case  of 
the  British  steamship  M.  &  Dollar. 

No.  V.,  2. 

Decision. 
Petitioner— The   M.    S.    Dollar   Co.,   Ltd.,   Victoria,   British 

Columbia. 
Representative — Robert   Dollar,   President. 
Advocate — G.    Akiyama,    Counsellor    at    Law,    15,    Unerae 
Cho,  Kyobashi  Ku,  Tokyo. 

In  the  case  of  the  British  steamship  .1/.  8.  Dollar,  trial  has  be^n 
held  and  the  following  decision  given: 

Text  of  the  Decision. 

The  British  steamship   M.  8.   Dollar  is  hereby  confiscated. 
Facts  and  Grounds  of  the  Decision. 

The  steamship  M.  8.  Dollar  is  the  property  of  the  petitioner,  and 
is  a  merchant  ship,  registered  at  Victoria,  Britisn  Columbia,  flying 
the  British  flag.  According  to  the  charter  party  entered  into  at  San 
Francisco,  North  America,  on  the  8th  of  December,  1904,  between  the 
M.  S.  Dollar  Steamship  Co.,  agent  of  the  petitioner,  and  Harry  J.  Hart 
of  San  Francisco,  the  ship  took  in  a  cargo  of  fodder  (about  26,200 
bundles  of  hay,  about  14,600  bags  of  barley  and  about  32,200  bags 
of  oats)  with  the  object  of  transporting  it  to  Vladivostock.  In  her 
papers,  Moji  was  put  down  as  her  destination,  and  in  the  bill  of 
lading,  the  consignee  was  stated  as  "  To  order."  The  ship  left  San 
Francisco  on  the  31st  of  the  same  month,  passed  the  Mushiri  Chan- 
nel and  steered  for  the  Strait  of  Soya.     But  being  obstructed  by  float- 


CHAP.  IV.]  CONTRABAND  GOODS.  665 

ing  ice,  she  passed  the  Boussole  Channel  and  took  the  route  to  Vladivo- 
stok via  the  Strait  of  Tsugaru.  In  order  to  hide  her  course,  however, 
statements  were  made  in  the  official  log,  ship's  log  and  engineer's 
log  as  if  she  had  made  for  the  Strait  of  Tsugaru,  direct  from  San 
Francisco.  While  she  was  thus  pursuing  her  course  for  Vladivostock, 
on  the  27th  day  of  the  1st  month  of  the  38th  year  of  Meiji,  she  was 
captured  by  the  Japanese  man-of-war  Asama  near  the  Cape  of  Tappi. 

The  above  facts  are  clear  from  the  statement  submitted  by  Lieu- 
tenant U.  Ogura,  representative  of  the  captain  of  the  Asama;  from 
the  testimony  given  by  the  same  officer,  by  Charles  Cross  ( ? ) ,  master, 
and  others  of  the  M.  8.  Dollar,  and  by  witnesses  Edward  Clarence 
Davis  and  R.  Stanley  Dollar;  from  the  certificate  of  the  ship's  na- 
tionality, the  charter  party,  the  bill  of  lading,  the  manifest,  the  clear- 
ance from  San  Francisco,  the  bill  of  health,  the  official  log,  the  ship's 
log,  the  engineer's  log,  and  the  real  ship's  log  which  the  master  pro- 
duced after  he  had  confessed  the  concealment  of  the  ship's  course, 
and   from  the   statement   of  the   petitioner's   advocate. 

The  purport  of  the  petition  is  as  follows: 

The  petitioner  let  the  ship  to  the  charterer  to  transport  a  cargo 
to  Moji,  according  to  the  charter  party,  and  her  steering  for  a  port 
not  stated  in  the  charter  party  as  her  destination  was  the  act  of  the 
charterer,  of  which  the  owner  had  no  knowledge.  Moreover,  the  cargo 
is  not  the  property  of  the  owner  of  the  ship.  So  that  the  ship  ought 
not  to  be  confiscated  together  with  the  cargo,  even  if  the  latter  is  con- 
traband of  war.  It  is  true  that  the  ship's  papers  are  not  perfect,  as 
no  mention  is  made  in  them  of  Vladivostock,  a  port  of  call ;  but  such 
omission  cannot  be  considered  a  contrivance  to  evade  capture.  And 
were  it  admitted  that  it  was  such  a  contrivance,  the  ship  should 
not  be  compromised,  as  it  was  the  act  of  the  charterer  to  secure  the 
cargo,  his  property,  from  capture  while  the  owner  of  the  ship  had 
no  knowledge  of  it.  Moreover,  the  cargo  is  not  absolute  contraband, 
and  in  case  such  goods  are  in  transit  to  a  place  like  Vladivostock, 
which  is  a  commercial  as  well  as  a  naval  port,  it  is  more  proper  to 
consider  them  as  destined  to  Vladivostock,  the  commercial  port,  and 
not  intended  for  military  use,  unless  there  is  proof  to  the  contrary. 
This  is  very  clear  form  the  case  of  the  Neptunus,  captured  in  the 
Dutch-English  War  of  1798.  Moreover,  fodder,  of  which  this  cargo 
was  composed,  is  not  restricted  to  military  use.  The  petitioner,  there- 
fore, requests  that  the  ship  be  released. 

After  due  consideration,  the  Court  concludes  as  follows: 

Vladivostock  is  an  important  Russian  naval  port  in  the  East  and 
is  actually  the  base  of  a  Russian  squadron.  Since  the  outbreak  of  the 
Russo-Japanese-  War,  the  Russian   Government  has   made   it   a   depot, 


666  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

where  they  have  been  devoting  their  whole  energy  to  collecting  mili- 
tary stores,  while  ordinary  trade  is  virtually  stopped  there.  These  being 
conspicuous  facts,  when  any  goods  like  fodder,  the  cargo  of  this  ship, 
which  become  contraband  of  war  according  to  circumstances,  are 
destined  to  Vladivostock,  it  is  more  proper  to  consider  them  as  in- 
tended for  military  use,  unless  there  is  strong  proof  to  the  contrary. 
As  to  the  Neptunus  case  cited  by  the  advocate,  it  is  not  applicable 
to  this  ship,  but,  on  the  contrary,  may  be  cited  as  a  precedent  for  con- 
demning the  cargo  as  contraband  of  war;  because,  unlike  Vladivostock, 
Amsterdam  at  that  time  was  chiefly  a  commercial  port,  while  on  the 
other  hand  Brest,  mentioned  in  the  same  case,  resembles  the  Russian 
Asiatic  port  in  many  respects.  It  becomes  still  clearer  that  this  cargo 
was  intended  for  the  enemy's  military  use  and  is  consequently  con- 
traband of  Avar,  if  we  take  into  consideration  the  quantity  of  goods 
and  the  fact  that  fraudulent  means  were  used  to  transport  them,  to- 
gether with  the  statements  made  by  the  master.  As  has  been  stated, 
it  is  clear  from  the  testimony  given  by  the  master  and  other  members 
of  the  crew  that  Vladivostock  was  the  port  of  destination.  Moreover, 
the  circumstances  that  made  the  ship  change  her  course  when  she  had 
arrived  at  the  north  of  Kunashiri  Island  on  the  23rd  of  the  1st  month, 
being  obstructed  by  floating  ice,  and  other  events  are  faithfully  stated 
in  the  real  ship's  log.  Notwithstanding  this,  in  her  papers  produced 
at  the  time  of  capture,  Moji  is  mentioned  as  the  port  of  destination, 
and  in  the  official  log,  ship's  log  and  engineer's  log,  the  course  of  the 
ship  is  hidden  and  a  statement  is  made  that  she  had  made  for  the 
Strait  of  Tsugaru  direct  from  San  Francisco.  Further,  the  master 
and  other  members  of  the  crew  did  not  tell  the  real  facts  when  the 
representative  of  the  captain  of  the  Asama  visited  the  ship,  and  when 
the  counsellor  in  charge  of  the  case  first  examined  them,  but  confessed 
only  after  they  had  been  examined  several  times.  These  facts  are  suf- 
ficient to  infer  that  they  deliberately  laid  out  a  scheme  to  evade  cap- 
ture. In  a  word,  the  M.  S.  Dollar  attempted  to  transport  contraband 
of  war,  using  fraudulent  means.  And  when  fraudulent  means  are  used, 
the  ship  is  liable  to  confiscation  together  with  the  contraband  cargo, 
no  matter  whether  the  owner  of  the  ship  colluded  in  the  fraud  or  not. 
On  the  above  ground,  this  ship  is  confiscable,  and  the  decision,  as 
stated  in  the  text,  has  been  given.  As  to  other  points  argued  by  the 
advocate,  there  is  no  need  to  give  explanation. 

Given  this  28th  day  of  the  4th  month  of  the  38th  year  of  Meiji, 
at  the  Yokosuka  Prize  Court,  Y.  Kobayashi,  Public  Procurator  of  the 
Yokosuka  Prize  Court,  taking  part. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 


CHAP.  IV.]  CONTRABAND   GOODS.  667 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  Sept.   12,   1905. 

The  following  decision  was  given  by  the  Higher  Prize  Court  on 
the  26th  day  of  the  8th  month  in  the  case  of  the  British  steamer  M.  8. 
Dollar. 

No.  XLVII. 

Decision. 
Petitioner— The    M.   S.   Dollar   Co.,  Ltd.,  Victoria,   British 

Columbia. 
Representative — Robert  Dollar. 

Advocate — G.    Akiyama,    Counsellor    at    Law,    15,    Uneme 
Cho,  Kyobashi   Ku,  Tokyo. 

A  protest  has  been  filed  by  G.  Akiyama,  advocate  of  Robert  Dol- 
lar, representative  of  the  petitioner,  the  M.  S.  Dollar  Co.,  against  the 
decision  of  the  Yokosuka  Prize  Court  given  on  the  20th  of  the  4th 
month  of  the  38th  year  of  Meiji,  in  the  case  of  the  British  steamship 
M.  8.  Dollar,  which  was  captured  by  the  Japanese  man-of-war  Asama, 
on  the  27th  of  the  1st  month  of  the  38th  year  of  Meiji,  in  the  neigh- 
bourhood of  Cape  Tappi.  The  original  decision  condemned  the  ship. 
The  protest  has  been  tried  before  this  Court,  the  Public  Procurators, 
K.  Tsuzuki  and  B.  Ishiwatari,  taking  part. 

The  purport  of  the  protest  filed  by  G.  Akiyama,  petitioner's  ad- 
vocate,  is   as    follows: 

The  decision  of  the  Yokosuka  Prize  Court,  condemning  the  steam- 
ship M.  8.  Dollar,  is  unreasonable  and  the  petitioner  requests  that  the 
original  decision  be  overruled  and  a  new  decision  releasing  the  ship 
be  given.  As  the  grounds  of  the  protest  the  petitioner's  advocate 
states  : 

(1)  The  owner  of  the  ship  is  a  different  person  from  that  of  the 
cargo.  Moreover,  the  ship  did  not  take  in  the  cargo  by  deceitful 
means.  So  that,  even  if  the  cargo  be  considered  contraband  of  war, 
the  ship  should  not  be  punished  together  with  it. 

(2)  The  only  reason  the  original  Court  condemned  the  ship  is 
that  she  attempted  to  transport  contraband  of  war  using  deceitful 
means,  and  that  when  deceitful  means  are  used,  the  ship  is  liable  to 
confiscation  together  with  the  contraband  cargo,  no  matter  whether  the 
owner  of  the  ship  colluded  in  the  fraud  or  not.  But  according  to 
modern  International  Law,  if  the  contraband  cargo  is  not  the  property 
of  the  owner  of  the  ship,  the  penalty  for  transporting  contraband  is 


668  NEW   CASES  ON   PRIZE  LAW.  [PART  V. 

limited  to  the  confiscation  of  the  cargo,  and  no  punishment  is  inflicted 
upon  the  ship,  except  the  loss  of  time,  freight  and  expenses.  And 
even  in  the  case  of  deceitful  means  being  used  in  transporting  con- 
traband, the  ship  is  not  liable  to  confiscation  together  with  the  cargo, 
unless  it  is  clearly  proved  that  the  owner  of  the  ship  colluded  in  the 
fraud.  This  principle  is  adopted  by  England,  and  is  also  followed 
in  the  Japanese  Regulations  Governing  Captures  at  Sea.  Consequently, 
in  condemning  a  ship  for  carrying  contraband  of  war  by  deceitful 
means,  the  owner  must  have  participated  in  the  fraud,  that  is,  col- 
lusion must  be  proved.  Now,  in  the  case  under  consideration,  is  there 
any  fact  justifying  the  assumption  that  the  owner  colluded  in  the 
fraud?  There  is  none.  The  original  Court  did  not  ascertain  the  fact, 
but  ruled  that  the  ship  is  confiscable  together  with  the  cargo,  no  mat- 
ter whether  the  owner  colluded  in  the  fraud  or  not.  The  original 
decision  is,  therefore,  unlawful. 

(3)  The  omission  of  the  place  of  destination  in  the  ship's  papers 
is  not  sufficient  to  constitute  deceitful  means  justifying  the  confisca- 
tion of  the  ship.  In  order  to  justify  such  penalty,  there  must  be  evil 
intention  to  deceive  the  officers  of  a  belligerent  man-of-war  who  visit 
and  search  the  ship,  and  the  means  used  must  be  good  enough  to  de- 
ceive. In  the  case  of  this  ship,  there  is  no  ground  for  inferring  that 
her  papers  were  prepared  with  such  evil  intention.  Moreover,  it  is 
very  clear  that  the  irregularities  in  the  papers  are  not  calculated  to 
accomplish  the  object  of  evading  capture.  The  ship  should  not,  there- 
fore, be  confiscated. 

(4)  The  owner  let  the  ship  to  the  consignor  to  be  employed  for  the 
transportation  of  barley,  oats  and  hay.  The  port  of  destination  was 
agreed  on  as  Moji,  Japan,  and  the  charter  party  was  concluded  with  that 
understanding.  The  ship's  voyage  to  a  place  other  than  that  port  was 
not,  therefore,  expected  by  the  owner.  Concerning  its  nature  and  force, 
the  charter  party  should  be  construed  under  the  British  Law,  as  it  was 
concluded  in  British  dominions.  Now,  according  to  British  Law,  a  char- 
ter party  has  the  nature  of  a  contract  of  hire,  and  the  possession  and 
supervision  of  the  ship  temporarily  passes  to  the  charterer.  But  waiv- 
ing this  construction  and  considering  it  a  common  contract  of  transpor- 
tation, even  then,  it  is  very  clear  that  the  intention  of  the  owner  was 
not  other  than  the  route  mentioned  in  the  charter  party.  So  that 
he  cannot  be  said  to  have  colluded  in  the  transportation  of  contraband 
of  war,  if  the  charterer  gave  secret  orders  to  the  master  and  the  mas- 
ter carried  them  into  effect.  Again,  according  to  the  principles  of 
ordinary  law,  the  master  of  a  ship  is  the  representative  of  the  owner, 
but  it  is  clear  that  the  owner  is  not  responsible  for  any  arbitrary 
conduct  of  the   master   beyond   the  scope   of  the   authority   commonly 


CHAP.  IV.]  CONTRABAND  GOODS.  669 

delegated  to  him.  For  a  stronger  reason,  the  owner  is  not  responsible 
for  such  an  act  as  the  transportation  of  contraband  of  war  by  de- 
ceitful means,  which  is  an  offence  against  International  Law.  For  the 
above  reasons,  the  owner  is  not  responsible  for  any  statements  in 
ship's  papers  other  than  the  charter  party,  nor  even  for  any  false 
statement  made  in  that  document,  unless  there  is  proof  that  he  was 
a   party  to  the  fraud. 

(5)  The  Japanese  Regulations  .  Governing  Captures  at  Sea  con- 
sider barley,  oats  and  hay  as  contraband  of  war,  only  when  they  are 
clearly  intended  for  the  enemy's  military  use.  Supposing  this  rule 
to  be  in  conformity  with  the  principle  of  International  Law,  it  is 
unreasonable  to  consider  the  goods  under  consideration,  which  are  not 
absolute  contraband,  as  intended  for  military  uses  merely  on  account 
of  their  being  consigned  to  Vladivostock.  Because  Vladivostock  is 
Russia's  only  commercial  as  well  as  her  only  naval  port  in  the  East,  and 
the  goods  should,  therefore,  be  considered,  according  to  the  precedent 
of  the  Neptunus  captured  during  the  Dutch-English  War  of  1798,  as 
consigned  to  Vladivostock,  the  commercial  port,  and  not  as  intended 
for  military  uses.  The  cargo  is  not,  therefore,  contraband  of  war, 
and  the  ship  which  carried  it  should  not  be  confiscated. 

The  gist  of  the  answer  of  Y.  Kobayashi,  Public  Procurator  of  the 
Yokosuka   Prize   Court,    to   the   above   protest,   is   as   follows: 

(1)  The  ship  in  transporting  a  full  cargo  of  fodder  to  Vladivos- 
tock, an  important  Russian  depot  where  the  enemy  has  been  ac- 
cumulating military  stores,  stated  the  destination  of  the  goods  as 
Moji  in  the  manifest,  the  charter  party,  the  bill  of  lading,  the  clear- 
ance, etc.  In  the  official  log,  the  ship's  log,  the  engineer's  log,  etc., 
the  fact  of  the  ship's  having  steered  for  the  Strait  of  Soya,  passing 
the  Kurile  Islands,  is  not  mentioned,  but  statements  are  made  as  if 
she  had  steered  straight  for  the  Strait  of  Tsugaru  after  leaving  port. 
Moreover,  the  ship  hid  the  log-book.  These  being  evident  facts,  the 
original  decision,  which  condemned  the  ship  on  the  ground  of  her 
being  engaged  in  the  transportation  of  contraband  of  war  using  de- 
ceitful  means,   is  just. 

(2)  The  original  Court  ruled  the  ship  confiscable  because  in  the 
charter  party  and  other  important  papers  false  statements  were  made 
of  important  items,  such  as  the  destination  of  the  contraband  goods, 
etc.  This  is  clear  from  the  decision.  Now,  a  charter  party  being  a 
contract  concluded  between  an  owner  and  a  charterer,  there  can  be 
no  doubt  that  the  owner  in  this  case  participated  in  the  fraud.  There 
is  no  need,  therefore,  to  discuss  whether  or  not  proof  of  the  owner's 
collusion  is  necessary  to  justify  confiscation  of  the  ship  on  the  ground 
of  fraud. 


670  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

(3)  In  the  charter  party,  the  bill  of  lading,  etc.,  the  destination 
of  the  cargo  is  put  down  as  Moji.  On  examining  the  official  log,  the 
ship's  log,  etc.,  to  ascertain  the  correctness  of  the  former  papers,  state- 
ments are  made  as  if  the  ship  had  steered  the  ordinary  route  to  Moji. 
If  these  records  concerning  navigation  are  correct,  then  the  former 
papers  must  be  considered  as  correct,  and  there  is  nothing  to  do  but 
to  give  a  decision  releasing  the  ship  with  her,  cargo.  But  the  false- 
hood of  these  records  become  evident  from  the  confession  of  the  mas- 
ter and  from  the  ship's  log  which  he  had  hidden.  The  original  de- 
cision which  condemned  the  ship  on  the  ground  that  there  were  false 
statements  in  these  important  papers  is,  therefore,  just. 

(4)  A  charter  party  is  not  a  contract  of  hire  and,  consequently, 
the  master  is  not  under  obligation  to  obey  the  order  of  the  charterer. 
And  in  the  case  under  consideration,  there  is  no  proof  of  the  peti- 
tioner's statement  that  the  master,  disregarding  the  orders  of  the 
owner,  attempted  to  proceed  to  Vladivostock,  instead  of  Moji,  in  ac- 
cordance with  the  direction  of  the  charterer. 

For  the  above  reasons,  the  Public  Procurator  considers  that  this 
protest  should  be  rejected. 

The  decision  of  this  Court  is  explained  as  follows: 

( 1 )  Vladivostock  is  an  important  Russian  naval  port.  Since  the 
outbreak  of  the  Russo-Japanese  War,  Russia  has  made  it  not  only 
the  base  of  her  fleet,  but  also  a  depot  where  she  has  been  accumu- 
lating arms,  provisions,  coal,  and  other  military  stores;  and  ordi- 
nary trade  there  is  almost  stopped.  These  are  conspicuous  facts. 
Moreover,  considering  the  quantity  of  the  barley,  oats  and  hay  on 
board  the  ship,  the  attempt  to  pass  the  Strait  of  Soya,  the  most 
dangerous  route,  and  the  deceitful  means  which  she  had  used,  it  is 
very  clear  that  the  goods  were  intended  as  fodder  for  the  Russian 
military  forces.  The  original  Court  is  not,  therefore,  unjust  in  con- 
sidering the  goods  contraband  of  war.  The  advocate  argues  that  the 
goods  should  be  considered  as  intended  for  peaceful  purposes,  follow- 
ing the  precedent  of  the  Neptunus  case.  But  the  Neptunus  case  and 
the  case  under  consideration  are  quite  different  in  the  circumstances 
of  the  place  of  destination  and,  of  course,  that  case  cannot  be  taken 
as  a  precedent. 

(2)  Any  vessel,  the  object  of  whose  voyage  is  the  transportation 
of  contraband  of  war,  like  the  ship  under  consideration,  is  liable  to 
confiscation.  This  is  recognised  in  International  Law  and  this  Court 
considers  it  to  be  reasonable.  Moreover,  the  whole  of  the  cargo  on 
board  the  ship  is  contraband  of  war,  and  notwithstanding  that  her 
destination  to  Vladivostock  was  agreed  upon  at  the  time  of  her  de- 
parture form   San   Francisco,  a   false  destination  is  mentioned  in  the 


CHAP.  IV.]  CONTRABAND  GOODS.  671 

charter  party  and  other  papers.     That  is  to  say,  she  transported  con- 
traband of  war  using  deceitful  means. 

For  the  reasons  explained  in  (1)  and  (2),  the  original  decision 
which  confiscated  the  ship  is  just,  and  as  to  the  other  points  of  pro- 
test no  explanation  is  needed. 

The  decision  given  is,  therefore,  as  follows: 

This  protest  is  hereby  rejected. 

Given  this  20th  day  of  the  6th  month  of  the  38th  year  of  Meiji, 
at  the  Higher  Public  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 

Case  IV.     The  Henry  Bolckow. 
Published  in  the  Official  Gazette,  Tokyo,  on  Dec.  21,  1905. 

Decision  of  the  YoJcosuka  Prize  Court. 
The  following  decision  was  given  on  the  28th  of  the  6th  month  of 
the  38th  year  of  Meiji,  by  the  Yokosuka   Prize  Court  in  the  case  of 
the  Norwegian  steamship  Henry  Bolckow. 

No.  XX.-l. 

Decision. 
Petitioner — Otta  Walaas,  Hittels  St.,  Flekkefjord,  Norway. 
Attorney — G.    Akiyama,    Counsellor    at    Law,    15,    Uneme 
Clio,  Kyobashi  Ku,  Tokyo. 

In  the  case  of  the  Norwegian  steamship  Henry  Bolckow,  the  fol- 
lowing decision  is  given  after  due  examination: 

Text  of  Decision. 

The  Norwegian  steamship  Henry  Bolckow  is  hereby  confiscated. 
Facts  and  Reasoning. 

The  steamship  Henry  Bolckow  is  a  merchant  ship,  registered  in 
Tensberg,  Norway,  and  entitled  to  sail  under  the  Norwegian  flag  for 
six  months,  reckoning  from  the  20th  day  of  the  10th  month  of  the 
37th  year  of  Meiji.  On  the  17th  of  the  3rd  month  in  the  38th  year 
of  Meiji,  the  petitioner,  as  the  master  of  this  ship,  received  on  board 
about  18,190  sacks  of  American  flour  from  the  consignors,  Melchers 
&  Co.,  at  Shanghai,  China,  with  the  object  of  transporting  it  to  Korsa- 
koff, Sakhalin,  Russia,  but  in  order  to  conceal  her  destination  she  ob- 
tained clearance  from  the  Shanghai  Customs,  pretending  to  be  bound 
for  Hongkong,  and  also  got  a  certificate  written  on  her  crew  list,  by 
the  Norwegian  Consul  at  Shanghai,  to  the  effect  that  her  destination 


672  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

was  Hongkong.  Being  instructed  by  Melchers  &  Co.  to  transport  the 
said  cargo  promptly  and  to  shape  her  course  to  the  east  of  Japan, 
she  weighed  anchor  at  Shanghai  at  about  1  p.m.  on  the  18th  of  the 
same  month,  and,  without  calling  at  Hongkong,  took  a  southeast 
course,  and  after  passing  Tori  Shima  (Ponafiden  Island)  and  Yamome 
Iwa  (Lot's  Wife)  through  the  north  of  Oki-no-Erabu,  proceeded  north- 
east. Approaching  Hokkaido  in  the  early  part  of  April,  she  tried 
several  times  to  pass  Boussole  Channel,  northeast  of  Urrup  Island,  but 
being  prevented  each  time  by  floating  ice,  stood  to  the  southward,  and 
while  sailing  with  the  intention  of  passing  Yetorup  Strait,  she  was 
discovered  by  the  Japanese  man-of-war  Kumano  Maru,  at  about  2  p.m. 
on  the  7th  of  the  same  month,  in  N.  Lat.  45°  10'  and  E.  Long.  149°  29' 
and  captured  as  a  ship  carrying  provisions  intended  for  the  enemy's 
military  use.  At  the  time  of  capture  she  had  a  copy  of  an  imperfect 
bill  of  lading,  but  had  no  clearance  nor  manifest.  She  had  frequently 
neglected  to  carry  her  running  lights,  violating  navigation  rules,  when 
she  approached  Japan. 

The  above  facts  are  proved  by  the  written  statement  of  Sub- 
Lieutenant  S.  Toriyama,  representing  the  captain  of  the  Japanese  man- 
of-war  Kumano  Maru,  by  the  affidavits  of  Otta  Walaas,  the  master, 
A.  Amusen,  first  mate,  S.  Lee,  chief  engineer,  Chuanchengsheng,  boat- 
swain, Changhsiangyuan,  Changhsiaolin,  quartermasters,  Asbeng  Asan, 
Achuan,  sailors,  all  of  the  steamship  Henry  Bolckoic,  and  of  the  said 
S.  Toriyama,  and  by  the  telegraphic  answer  of  the  Vice  Minister  of 
Foreign  Affairs,  the  ship's  log-book,  the  certificate  of  the  ship's  na- 
tionality,- the  provisional  certificate  of  nationality,  a  letter  to  the 
master  from  Melchers  &  Co.,  a  telegram  attached  to  the  letter,  and 
the  crew  list. 

The  main  points  of  the  petition  are: 

The  petitioner  is  the  owner  as  well  as  the  master  of  the  ship  under 
consideration.  This  ship  took  on  board  about  18,190  sacks  of  Ameri- 
can flour  on  the  17th  of  the  3rd  month  of  this  year,  at  the  request 
of  Melchers  &  Co.  at  Shanghai,  and  while  sailing  for  Korsakoff,  Sakha- 
lin, with  the  object  of  transporting  the  cargo  there,  she  was  captured 
by  the  Japanese  man-of-war  Kumano  Maru  on  the  7th  of  the  4th  month 
in  the  same  year,  in  the  vicinity  of  Yetorup  Channel.  But  the  cargo 
was  bought  and  shipped  by  the  said  Melchers  &  Co.  at  the  request 
of  the  Det  Ostasiatick  Co.  of  Copenhagen,  to  be  transported  for  the 
rescue  of  the  starving  people  at  Korsakoff,  Sakhalin,  and  not  for 
military  use.  Hence  this  ship  cannot  be  held  as  engaged  in  the  trans- 
portation of  contraband  of  war.  The  statement  of  Hongkong  as  her 
destination  in  the  crew  list  was  for  the  purpose  of  concealing  from  the 
crew  that  she  was  bound  for  Korsakoff,  and  that  this  statement  wa 


CHAP.  IV.]  CONTRABAND   GOODS.  673 

not  made  in  order  to  evade  capture  is  proved  by  the  fact  that  the 
destination  of  Korsakoff  was  mentioned  in  the  bill  of  lading.  As  the 
foregoing  shows,  this  ship  committed  no  act  justifying  confiscation,  so 
she  should  be  released. 

After  due  consideration  the  Court  concludes  as  follows: 
The  petitioner  contends  that  the  American  flour,  the  cargo  of  this 
ship,  was  to  be  transported  to  Korsakoff  for  the  starving  people  there, 
but  he  denies  any  knowledge  as  to  who  the  starving  people  were.  In 
the  letter  from  Melchers  &  Co.  to  the  master,  it  is  stated  that  the 
<?argo  was  to  be  supplied  to  the  starving  people  at  Korsakoff,  Sakhalin, 
and  not  to  any  other  place  than  Sakhalin,  and  that  the  correctness 
of  the  above  statement  would  be  certified  by  the  consul;  but  the  con- 
sul must  have  been  unable  to  give  such  a  certificate,  considering  that 
he  had  actually  mentioned  in  the  crew  list  that  the  ship  was  bound 
for  Hongkong.  Moreover,  in  the  said  letter,  the  "starving  people" 
are  underlined  which  shows  that  the  above  statement  was  purposely 
made  as  a  plausible  reason  to  escape  capture,  and,  therefore,  it  can- 
not be  taken  as  a  true  statement.  Besides,  although  there  was  ample 
time  for  giving  evidence  as  to  who  the  consignee  was,  no  proof  was 
produced  on  this  point,  nor  was  there  any  trustworthy  proof  of  the 
statement  that  the  cargo  was  intended  for  the  starving  people.  On 
the  other  hand,  the  port  of  Korsakoff  being  an  important  defensive 
place  in  the  southern  part  of  Sakhalin  Island,  the  strength  of  the 
garrison  has  been  increased  since  the  outbreak  of  the  Russo-Japanese 
War,  and  the  volunteer  system  has  also  been  established;  and  on  the 
31st  day  of  March,  1904,  Russian  calendar,  the  Viceroy  of  the  Far  East 
issued  a  special  ordinance  to  encourage  volunteers,  and  stipulated  that 
exiles,  who  would  become  volunteers,  would  enjoy  mitigation  of  their 
punishments.  As  the  result  of  the  above  steps,  the  military  force  at 
Korsakoff  has  of  late  been  immensely  augmented.  Some  part  of  the 
civil  residents  of  the  place,  whose  number  was  very  small  even  in  time 
of  peace,  have  removed,  since  the  war,  to  other  places,  expecting  the 
attack  of  the  Japanese  army;  while  the  other  part  have  enlisted  as 
volunteers,  and  now  it  is  a  fact  that  only  a  very  small  portion  of 
them  remain  there.  Although  Korsakoff  was  definitely  fixed  for  the 
ship's  destination  at  her  departure  from  Shanghai,  clearance  was  ob- 
tained from  the  Custom  House  under  the  pretence  that  she  was  bound 
for  Hongkong;  and  a  statement  of  false  destination  in  the  crew's  list 
was  obtained  from  the  Norwegian  Consul,  under  the  same  pretence. 
Although  instructed  to  transport  the  cargo  speedily,  she  did  not  take 
the  nearest  route,  but  tried  to  pass  Boussole  Channel  or  Yetorup  Straits 
for  way  through  the  Pacific  Ocean,  and  when  prevented  by  floating 
ice,  still  strove  to  navigate  the  difficult  passage.    And  this  ship,  in  vio- 


674  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

lation  of  the  rules,  when  approaching  the  territory  of  Japan,  failed  to 
carry  running  lights.  These  acts  cannot  be  anything  but  means  taken 
to  evade  capture  by  the  Japanese  Navy.  It  is  evident,  when  the  above 
facts  are  taken  into  consideration,  that  the  cargo  of  this  ship  was  not 
for  ordinary  trade  nor  to  be  supplied  to  starving  people,  but  was 
transported  for  the  military  use  of  the  enemy.  Hence  it  is  lawful 
to  regard  the  cargo  as  contraband  of  war.  As  the  foregoing  shows, 
this  ship  obtained  clearance  by  making  a  false  statement  of  destina- 
tion; she  purposely  took  a  roundabout  route  with  a  false  statement 
of  her  course  in  the  crew's  list;  she  failed  to  carry  lights,  in  viola- 
tion of  the  rules;  and  she  was  not  provided  with  bill  of  clearance  or 
manifest.  In  short,  she  transported  contraband  of  war  by  false  means. 
Both  the  theory  and  usage  of  International  Law  allow  that  such  a  ship 
should    be    confiscated. 

For  the  above  reasons,  this  ship  is  liable  to  confiscation,  and  as 
to  the  other  points  contended  by  the  petitioner,  no  explanation  is 
necessary. 

The  decision  is  therefore  given  as  in  the  text. 

Given  this  28th  day  of  the  6th  month  of  the  38th  year  of  Meiji, 
at  Yokosuka  Prize  Court,  Y.  Kobayashi,  Public  Procurator  of  the 
Yokosuka   Prize   Court,   taking  part. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected 
for  the  same  reasons  held  by  the  Yokosuka  Prize  Court. 

Case  V.     The  Lydia. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  March  3,  1906. 

Decision  of  the  Saseoo  Prize  Court. 
The  following  decision  was  given  on  the  18th  day  of  the  10th  month 
of  the  36th  year  of  Meiji,  by  the  Sasebo  Prize  Court  in  the  case  of 
the  German  steamship  Lydia: 

Decision. 
Petition  No.   1. 

Petitioners — Theodor    and    F.    Eimbecke,    Hamburg,    Ger- 
many. 
Petitioner — H.  Wilhelm  Dieckmann,  jr. 
Representative — R.    Richter,   Master   of  the  Lydia;  Buer- 

germeister  Schmidtstrasse,  Bremerhaven,  Germany. 
Attorney — T.    Ishibashi,    Counsellor    at    Law,    41,    Togiya 
Machi,  Nagasaki. 


CHAP.  IV.]  CONTRABAND  GOODS.  675 

In  the  case  of  the  German  steamship  Lydia,  decision  is  given  as 
follows : 

Text  of  Decision. 

The  steamship  Lydia  w  hereby  confiscated. 
Facts  and  Reasons. 

The  steamship  Lydia,  owned  jointly  by  the  petitioners,  Theodor  and 
F.  Eimbecke  and  H.  Wilhelm  Dieckmann,  jr.,  is  a  merchant  ship  under 
the  German  flag,  engaged  in  the  transportation  of  goods.  She  was 
chartered  by  H.  Wilhelm  Dieckmann,  jr.,  one  of  the  owners,  and  took 
on  board  at  Hamburg,  Germany,  machine  oil,  cylinder  oil,  wheel  pitch, 
madia  pitch,  acetic  acid,  oil  cans,  washers,  belting  iron,  leather  belts, 
emery,  hemp  ropes,  table  salt  and  salt,  for  the  purpose  of  transport- 
ing them  to  Nicolaievsk,  Russia.  The  manifest  and  bill  of  lading 
were  prepared  in  two  different  forms,  one  giving  the  destination  as 
Hongkong,  the  other  Nicolaievsk.  Having  the  documents  with  the 
name  of  Hongkong  only,  in  order  to  show  that  the  ship  was  bound 
for  that  port,  she  started  from  Hamburg  on  the  8th  day  of  the  4th 
month  of  the  36th  year  of  Meiji.  She  arrived  at  Hongkong  on  the 
4th  of  the  6th  month  of  the  same  year,  and  received  there  the  mani- 
fest and  bill  of  lading,  giving  Nicolaievsk  as  the  destination,  which 
had  been  sent  by  mail  from  her  owners.  Leaving  Hongkong  for  Nico- 
laievsk on  the  9th  of  the  7th  month  in  the  same  year,  she  took  a 
roundabout  course,  east  of  Formosa  and  south  of  Loochoo.  On  the 
16th  of  the  same  month,  she  encountered  a  typhoon,  her  steering  gear 
was  broken  and  she  drifted  from  the  17th.  She  made  a  jury  tiller 
on  the  20th  and  tried  to  reach  port  at  Nagasaki.  But  not  being  well 
under  control,  she  determined  to  find  shelter  at  Shanghai,  and  when 
she  got  near  the  main  island  of  Loochoo  on  the  23rd  in  changing 
course,  her  tiller  was  again  broken  and  she  could  not  move  any  more. 
So  she  gave  up  the  idea  of  going  to  Shanghai,  and  asked  for  help  of 
the  signal  station  on  Kiyamu  Cape  in  Loochoo.  Finally  she  put  into 
port  Naha  with  the  assistance  of  the  Japanese  merchantman  Futami 
Maru,  and  was  captured  as  a  contraband  carrier  by  the  Japanese  man- 
of-war  Nippon  Maru,  on  the  26th  of  the  same  month  (July,  1905) 
while  at  anchor  there. 

The  above  facts  are  proved  by  the  written  statement  of  H.  Nari- 
kawa,  Captain  of  the  Nippon  Maru,  by  the  affidavit  of  R.  Richter, 
master,  Franz  Bolmann,  first  mate,  Hans  Ostermann,  second  mate,  all  of 
the  Lydia,  by  the  certificate  of  the  ship's  nationality,  the  manifest,  the 
bill  of  lading,  the  ship's  log,  the  charter  party*,  and  the  bill  of  health. 

The  main  points  of  the  statement  of  the  attorney  for  the  petitioners 
are  as  follows: 


676  NEW  CASES   ON   PRIZE   LAW.  [PART  V. 

(1)  This  ship  was  not  captured  on  her  voyage  to  Nicolaievsk, 
but  while  at  anchor  at  Naha  Port  having  applied  for  help  at  the  signal 
station  in  Kiyamu  Cape,  Loochoo,  after  having  given  up  the  idea  of 
going  to  Nicolaievsk  and  having  steamed  back  about  250  miles  in  the 
direction  of  Shanghai.  Therefore,  even  supposing  she  had  engaged  in 
prohibited  carriage  by  sea,  her  original  object  was  changed,  and  given 
up,  so  she  is  not  liable  to  confiscation. 

(2)  In  order  to  decide  according  to  International  Law,  whether 
or  not  a  voyage  is  objectionable,  the  actual  facts  and  circumstances 
must  be  taken  for  the  grounds  of  judgment,  and  it  is  unlawful  to 
make  conclusions  on  a  presumption  of  the  future  and  uncertain  facts, 
such  as  to  say  that  this  ship  might  renew  her  voyage  once  given  up, 
when  she  completed  repairs.  Even  granting  that  the  presumption  is 
lawful,  it  would  be  about  the  15th  of  the  10th  month  of  this  year  be- 
fore she  could  be  repaired  and  made  seaworthy  at  Shanghai;  and 
as  the  sea  would  be  ice  bound  by  that  time,  she  would  not  be  able 
to  attempt  the  voyage  to  Nicolaievsk  before  the  4th  month  of  the 
next  year.  The  peace  treaty  between  Japan  and  Russia  has  now  been 
signed,  and  the  exchange  of  ratifications  is  nearly  settled.  Needless 
to  say  that  the  confiscation  of  this  ship  at  such  a  time,  and  on  a 
presumption  of  a  future  and  uncertain  fact  which  may  take  place 
after  the  4th  month  of  next  year,  is  unreasonable. 

(3)  Even  supposing  the  contentions  (1)  and  (2)  are  groundless, 
the  cargo  of  this  ship  consists  mostly  of  agricultural  goods,  and  con- 
tains no  contraband  of  war,  so  it  should  not  be  confiscated.  The 
ship  should  also  be  exempt  from  confiscation. 

(4)  There  are  some  goods  among  the  cargo  which  the  Japanese 
Government  may  deem  contraband  of  war,  but  they  were  loaded  by 
carelessness  and  not  with  any  evil  intention.  Moreover,  this  ship 
belongs  to  a  different  party  from  her  cargo.  Hence,  the  contraband 
goods  may  be  subjected  to  confiscation,  but  the  ship  and  non-contraband 
cargo  should  not  be  confiscated.  For  the  above  reason,  this  ship  should 
be  released. 

The  main  points  of  the  opinion  of  the  Public  Procurator  are: 
Of  the  cargo  of  the  ship,  certain  goods  such  as  belting  iron,  ma- 
chine oil,  leather  belts  and  table  salt  are  contraband  of  war,  because 
they  are  consigned  to  Nicolaievsk,  and  this  ship  took  false  means  in 
the  transportation  of   the   contraband  goods.      Besides,  this   ship   and 
her  cargo  belong  to  the  same  owner.     Hence,  she  should  be  confiscated. 
After  due  consideration,  the   Court  concludes   as   follows: 
It  is  admitted,  both  by  the  rules  and  usages  of  International  Law, 
that  a  ship  carrying  contraband  of  war  by  false  means,  is  liable  to 
confiscation.    Of  the  cargo  of  this  ship,  certain  goods,  such  as  machine 


CHAP.  IV.]  CONTRABAND  GOODS.  677 

oil,  cylinder  oil,  wheel  pitch,  madia  pitch,  acetic  acid,  oil  cans,  washers, 
belting  iron,  leather  belts,  emery  and  hemp  rope,  are  materials  for 
building  or  equipping  ships,  and  table  salt  and  salt  are  provisions. 
Their  destination,  Nicolaievsk,  is  an  important  coast  fortress,  guarding 
the  Russian  littoral  provinces  conjointly  with  Vladivostock,  and  it 
is  a  fact  that  since  the  seaward  communications  of  Vladivostock  have 
been  cut  off  by  the  Japanese  Squadron,  since  the  5th  and  7th  month 
of  this  year,  Nicolaievsk  has  become  the  chief  gateway  for  the  im- 
portation of  war  materials.  Therefore,  the  above  goods  are  un- 
doubtedly contraband  of  war,  intended  for  the  military  use  of  the 
enemy.  Besides,  notwithstanding  that  her  destination  to  Nicolaievsk 
was  decided  on  when  she  left  Hamburg,  she  sailed  for  Hongkong  with 
a  manifest  and  a  bill  of  lading  in  which  the  name  of  Hongkong  was 
given  as  her  destination.  The  above  steps  were  taken  for  the  purpose 
of  evading  capture  by  the  Japanese  squadron,  which  was  cruising  be- 
tween Singapore  and  Hongkong  at  that  time.  In  other  words,  she 
transported  contraband  of  war  by  false  means,  and  consequently  is 
liable  to  confiscation.  The  attorney  for  the  petitioners  contends  that 
she  had  given  up  her  voyage  to  Nicolaievsk,  and  that  even  supposing 
she  had  not,  she  could  not  move  on  account  of  repair  until  about  the 
15th  of  the  10th  month  of  this  year,  and  that  as  the  sea  would  be 
ice-bound  by  that  time,  she  could  not  sail  for  her  destination  before 
the  4th  month  of  next  year,  and  therefore  it  would  be  unreasonable 
to  confiscate  her  for  such  remote  and  uncertain  acts.  But  the  mas- 
ter, R.  Richter,  stated  when  examined'  by  the  councillor  in  charge  of 
this  case :  "  The  ship  was  to  go  directly  to  Nicolaievsk  if  the  tem- 
porary repairs  could  be  made  at  Loochoo."  Hence,  it  is  evident  that 
the  master  had  not  given  up  the  idea  of  going  to  Nicolaievsk  at  the 
time  of  her  capture.  It  is  the  rule  of  International  Law  that  a  ship, 
which  has  begun  the  act  of  transporting  contraband  of  war,  is  liable 
to  confiscation,  so  long  as  her  original  intention  has  not  been  aban- 
doned at  the  time  of  capture.  Therefore,  her  capture  was  lawful,  even 
granting  that  on  account  of  repairs  she  would  be  unable  to  sail  until 
after  the  4th  month  of  next  year.  Moreover,  her  repairs  at  Shanghai 
would  not  take  so  long  as  stated  by  the  petitioners'  attorney,  and  she 
could  have  arrived  at  Nicolaievsk  before  the  North  Sea  was  frozen 
over.  For  the  above  reasons,  the  contentions  of  the  attorney  for  the 
petitioner  are  groundless  and  the  decision  is  given  as  in  the  text. 

Given  this  18th  day  of  the  10th  month  of  the  38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  C.  Minakami,  Public  Procurator,  taking 
part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


678  NEW   CASES   QN   PRIZE   LAW.  [PART  V. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  March  22,  1906. 
The   following  decision   was   given  on  the    12th   of  the  3rd  month 
of  the  39th  year  of  Meiji,  by  the  Higher  Prize  Court  in  the  case  of 
the  German  steamship  Lydia. 

Case  No.  LXXXVII. 

Decision. 
Petitioners — Theodor    und    F.    Eimbecke,    Hamburg,    Ger- 
many. 
Petitioner — H.   Wilhelm  Dieckmann,  jr. 
Representative — R.   Richter,  Master  of  the   Lydia;   Buer- 

germeister  Schmidtstrasse,  Bremerhaven,  Germany. 
Attorney — T.    Ishibashi,    Counsellor    at    Law,    41,    Togiya 
Machi,  Nagasaki.   . 

In  the  case  of  the  steamship  Lydia,  captured  by  the  Japanese  man- 
of-war  Nippon  Maru,  on  the  26th  of  the  7th  month  of  the  38th  year 
of  Meiji,  while  at  anchor  at  Naha  Port,  the  Sasebo  Prize  Court  gave 
the  decision  on  the  18th  of  the  10th  month  of  the  same  year,  confiscat- 
ing the  ship.  Whereas,  T.  Ishibashi,  attorney  for  R.  Richter,  repre- 
sentative of  the  petitioners,  Theodor  und  F.  Eimbecke  and  H.  Wilhelm 
Dieckmann,  has  filed  an  appeal  against  that  decision,  the  case  has 
been  examined  and  the  following  decision  is  given,  B.  Ishiwatari,  Pub- 
lic Procurator  of  the  Higher  Prize  Court,  taking  part. 

The  main  points  of  appeal  by  T.  Ishibashi,  attorney  for  the  peti- 
tioners, against  the  original  decision  are  as  follows: 

On  the  16th  of  the  7th  month  of  the  38th  year  of  Meiji,  this  ship 
encountered  a  typhoon,  in  N.  Lat.  27°  40'  and  E.  Long.  131°  2',  while 
bound  for  Nicolaievsk,  and  on  the  17th  the  sea  was  so  heavy  that  her 
steering  gear  was  destroyed.  After  drifting  for  three  days,  she  man- 
aged to  make  a  jury-tiller  on  the  20th,  but  being  unable  to  navigate 
so  far  as  Nicolaievsk  in  such  an  unseaworthy  condition,  it  was  de- 
cided by  a  conference  of  the  ship's  officers,  held  from  5  p.m.  to  8, 
to  go  to  Shanghai.  (The  ship's  position  at  noon  of  that  day  was 
N.  Lat.  26°  45'  and  E.  Long.  131°  35'.)  In  accordance  with  this 
decision,  she  steamed  back  for  three  days,  250  miles.  Her  jury-tiller 
was  again  broken  in  the  vicinity  of  Loochoo  Island,  between  1  and  4 
p.m.  on  the  23rd  of  the  7th  month,  and  she  was  crippled.  So  she 
signalled  for  help  to  the  signal  station  on  Kiyamu  Cape,  and  was 
taken  to  Naha  Port  by  the  Futami  Maru  at  5  p.m.  on  the  24th.  Fi- 
nally she  was  captured  by  the  Japanese  man-of-war  Nippon  Maru,  on 


CHAP.  IV.]  CONTRABAND  GOODS.  679 

the  26th,  while  at  anchor  there.  As  the  foregoing  shows,  this  ship 
was  not  captured  on  her  way  to  Nicolaievsk,  but  while  at  anchor  at 
Naha  Port,  after  having  given  up  her  voyage  and  having  run  back 
about  250  miles  toward  Shanghai.  According  to  International  Law, 
a  ship  that  has  begun  to  transport  contraband  of  war  for  the  benefit 
of  the  army  or  navy  of  the  enemy  is  exempt  from  capture,  if  she  has 
given  up  that  purpose.  Hence,  this  ship  should  be  released.  The 
original  Court  denied  the  fact  that  she  turned  back  towards  Shanghai, 
quoting  the  master's  statement  in  this  affidavit,  i.  e.,  "  the  ship  was  to 
go  directly  to  Nicolaievsk  if  the  temporary  repairs  could  be  made 
at  Loochoo."  But  that  she  ran  back  for  three  days  about  250  miles 
towards  Shanghai,  was  an  actual  fact,  not  an  argument  on  paper.  On 
the  other  hand,  the  above  cited  statement  of  the  master  is  too  obscure 
to  be  true,  so,  perhaps,  as  contended  by  the  master  in  the  original 
Court,  it  may  be  a  mistake  of  the  interpreter.  Even  supposing  the 
master  made  the  statement  that  the  ship  was  to  go  to  Nicolaievsk,  the 
fact  that  she  turned  back  towards  Shanghai  is  counter-proof.  Hence, 
it  is  proper,  according  to  the  principles  of  evidence,  to  accept  the 
fact  in  preference  to  the  statement.  Moreover,  in  the  ship's  log-book 
which  was  seized  at  the  time  of  capture,  and  in  which  no  subsequent 
alteration  could  be  made,  it  is  clearly  mentioned  that  the  decision 
to  steer  back  to  Shanghai  was  made  at  a  conference  of  all  the  ship's 
officers,  held  from  5  p.m.  to  8  on  the  20th  of  the  7th  month,  and 
there  is  no  doubt  that  unless  exceptional  circumstances  took  place, 
the  master  would  not  alter  that  decision  at  his  sole  discretion.  Even 
accepting  the  statement  in  the  master's  affidavit,  as  proof,  if  the 
whole  sentence  be  read  carefully,  it  may  be  construed  that  the  voyage 
to  Nicolaievsk  was  abandoned.  For  it  says  "the  ship  was  to  go 
directly  to  Nicolaievsk  if  temporary  repairs  could  be  made  at  Loochoo, 
but  as  it  was  impossible  to  find  a  smith,  I  intended  to  go  to  Naga- 
saki." This  shows  that  as  the  repairs  could  not  be  made  at  Loochoo, 
she  was  unable  to  go  to  Nicolaievsk.  Being  in  answer  to  a  supposi- 
titious question  of  the  Councillor,  "  What  did  you  intend  to  do  if  the 
repairs  could  be  made  at  Loochoo,"  it  was  a  conditional  statement. 
Hence,  the  fact  that  this  ship  turned  back  to  Shanghai,  and  the 
statement  in  the  log-book  cannot  be  upset  by  such  a  statement. 

The  main  points  of  the  response  of  S.  Yamamoto,  Public  Procura- 
tor of  the  Sasebo  Prize  Court,  are: 

The  steamship  Lydia  is  the  common  property  of  Theodor  und  F. 
Eimbecke,  and  H.  Wilhelm  Dieckmann,  jr.,  so  there  was  no  necessity 
of  a  charter  party  to  one  of  the  joint  owners,  Dieckmann,  jr.,  but  in 
order  to  evade  capture  by  Japanese  men-of-war,  a  charter  was  con- 
tracted, and  the  manifest  was  prepared  in  two  different  forms,  when 


680  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

leaving  Hamburg,  ft.  e.,  one  with  Hongkong  as  the  destination,  and  the 
other  with  Nicolaievsk,  the  latter  manifest  was  sent  by  mail  and  kept 
in  the  ship  after  she  arrived  at  Hongkong.  By  these  means,  she  in- 
tended to  transport  contraband  of  war  to  Nicolaievsk,  the  enemy's  ter- 
ritory. That  she  could  not  accomplish  her  object  on  account  of  an 
unexpected  hindrance,  makes  no  difference  so  far  as  the  fact  of  con- 
traband carriage  is  concerned.  The  right  of  a  belligerent  to  capture 
a  contraband  carrier,  acting  for  his  enemy,  and  to  confiscate  the  con- 
traband goods,  is  not  limited  to  cases  when  the  object  could  be  ac- 
complished without  hindrance.  If  a  ship  sails  with  the  object  of 
transporting  contraband  goods,  she  must  be  taken  to  be  in  the  course 
of  her  original  voyage,  even  when  drifting  because  of  damage  to 
her  hull  caused  by  a  typhoon,  or  when  taking  shelter  in  a  harbour, 
as  in  this  case.  The  petitioners  argue  from  the  fact  that  her  steer- 
ing gear  having  been  destroyed  by  a  typhoon,  she  temporarily  turned 
back  towards  Shanghai  and  applied  for  help  at  the  signal  station  on 
Kyamu  Cape,  that  she  had  given  up  her  original  voyage.  But  the  fact 
that  she  sought  repairs  and  temporary  shelter  show  that  she  intended 
to  continue  her  original  voyage,  and  consequently  cannot  be  taken 
as  proof  that  she  had  given  it  up.  The  master  stated  that  the  ship 
was  to  go  to  Nicolaievsk,  her  destination,  if  her  steering  gear  could 
be  repaired  at  Loochoo.  The  petitioners  contend  that  if  the  whole 
sentence  be  read  carefully,  it  may  be  construed  that  she  had  aban- 
doned her  voyage  to  Nicolaievsk,  for  it  says,  "  the  ship  was  to  go  to 
Nicolaievsk  if  repairs  could  be  made  at  Loochoo,  but  as  it  was  im- 
possible to  find  a  smith,  I  intended  to  go  to  Nagasaki,"  and  that  this 
shows  that  as  the  repairs  could  not  be  made  at  Loochoo,  she  was 
unable  to  go  to  Nicolaievsk.  But  even  supposing  her  damage  was  so 
great  that  she  could  not  go  to  Nicolaievsk,  it  does  not  follow  that 
she  had  given  up  the  idea  of  transporting  the  contraband  of  war. 
Because,  as  mentioned  in  the  bill  of  lading,  if  by  the  act  of  God,  or 
some  other  event,  the  transportation  could  not  be  made  by  this  ship, 
the  master  was  bound  to  transport  the  cargo  to  its  destination  by 
another  ship  or  by  being  towed.  Moreover,  her  damage  was  not  so 
great  as  asserted  by  the  petitioners,  and  she  might  easily  have  been 
repaired  and  have  sailed  for  her  destination  before  the  North  Sea 
was  frozen  over.  In  short,  her  act  of  holding  an  officer's  conference, 
and  turning  back  for  Shanghai,  was  for  the  purpose  of  getting  shelter 
there,  and  that  of  applying  for  help  at  the  signal  station  on  Kyamu 
Cape,  was  for  the  purpose  of  getting  repairs  at  the  Loochoo  port  in 
order  to  continue  her  original  voyage,  and  there  is  nothing  to  prove 
that  she  had  abandoned  the  original  object  of  her  voyage.  Therefore, 
the  decision  of  the  original  Court  confiscating  this  ship  as  a  carrier 


CHAP.  IV.]  CONTRABAND  GOODS.  681 

of  contraband  by  fraud  was  reasonable,  and  this  appeal  should  be  dis- 
missed because   it  is  entirely  groundless. 

The  reasons  of  decision  by  the  Higher  Prize  Court  are  given  as 
follows : 

Nicolaievsk,  having  the  command  of  the  mouth  of  the  Amur  River, 
is  an  important  place  of  defence  conjointly  with  Vladivostock,  pro- 
tecting the  rear  of  the  Russian  army  in  Manchuria,  and  it  is  a  con- 
spicuous fact  that  since  the  sea  communications  of  Vladivostock  have 
been  almost  suspended  by  the  Japanese  Squadron,  that  place  has  be- 
come the  chief  gateway  for  the  importation  of  war  materials,  and  its 
defence  has  been  immensely  strengthened  by  constructing  forts,  and 
by  stationing  there  an  army  and  gunboats  and  torpedo  boats.  The 
cargo  of  this  ship,  consisting  of  machine  oil,  cylinder  oil,  wheel  pitch, 
madia  pitch,  oil  cans,  acetic  acid,  washers,  belting  iron,  leather  belts, 
emery  and  hemp  ropes,  which  are  materials  for  building  or  equipping 
ships,  and  table  salt  and  salt  which  are  provisions,  when  destined  to 
that  place,  must  be  regarded  as  contraband  of  war  intended  for  the 
military  use  of  the  enemy.  Although  this  ship  was  chartered  by  H. 
Wilhelm  Dieckmann,  jr.,  and  it  appeared  at  her  departure  that  she 
was  used  for  the  transportation  of  goods  shipped  by  him,  yet  the  per- 
son who  gave  instructions  about  the  loading  of  her  cargo  at  Ham- 
burg was  Dreiel,  a  clerk  of  F.  Eimbecke,  one  of  the  joint  owners  of 
this  ship,  and  Noevel  &  Co.,  the  consignee  of  the  cargo  at  Nicolaievsk, 
are  partners  of  unlimited  liability  in  the  company  who  are  the  other 
owners  of  this  ship.  Besides,  the  master  was  instructed  to  fly  the 
said  consignee's  flag  when  she  arrived  at  Nicolaievsk.  Considering 
the  above  facts,  it  must  be  inferred  that  the  transportation  of  the 
said  contraband  of  war  by  this  ship  was  contrived  on  the  joint  ac- 
count of  the  common  owners.  One  of  the  bills  of  lading  contains  the 
statement  that  the  goods  were  loaded  for  Hongkong,  and  the  master 
explained  that  he  did  not  know  on  leaving  Hamburg  that  the  ship 
was  bound  for  Nicolaievsk,  but  this  other  statement  proves  that  the 
bill  of  health  given  by  the  Hamburg  police  station,  and  certified  by 
a  Russian  officer,  which  is  a  necessary  paper  for  a  ship  bound  to  a 
Russian  port,  and  the  other  bill  of  lading  which  contains  the  state- 
ment that  the  goods  were  destined  to  Nicolaievsk,  were  prepared  at 
Hamburg  on  the  7th  of  April,  1905,  i.  e.,  a  day  before  the  ship's  de- 
parture. Hence,  it  is  evident  that  she  was  bound  for  Nicolaievsk  from 
the  first,  and  that  in  order  to  evade  capture  by  the  Japanese  men-of- 
war  which  were  then  cruising  between  Hongkong  and  Singapore,  and 
to  accomplish  her  illicit  voyage  more  easily,  she  carried  only  the 
papers  containing  the  statement  that  her  destination  was  Hongkong, 
until  she  reached  that  port,  and  there  she  received  by  mail  the  other 


682  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

bill  of  lading  and  bill  of  health  giving  her  destination  as  Nicolaievsk. 
In  other  words,  she  attempted  to  transport  contraband  of  war  by 
fraudulent  means.  The  appellant  contends  that  this  ship  was  not  cap- 
tured on  her  voyage  to  Nicolaievsk,  but  while  at  anchor  in  Naha  Port, 
having  applied  for  help,  after  having  given  up  her  voyage  on  account 
of  the  damage  to  her  steering  gear  caused  by  a  typhoon,  and  having 
steamed  back  towards  Shanghai  250  miles,  and  that  even  supposing 
she  was  transporting  contraband  of  war,  she  is  not  liable  to  con- 
fiscation, because  she  had  altered  her  original  purpose.  Her  log-book 
contains  the  statement  that  she  encountered  a  typhoon,  and  that  her 
steering  gear  was  damaged,  and  that  she  turned  back  in  order  to  take 
shelter  at  Shanghai,  but  there  is  no  proof  that  she  had  given  up  the 
idea  of  going  to  Nicolaievsk.  Moreover,  her  damage  was  so  slight  that 
she  might  have  been  repaired  and  have  sailed  again  for  Nicolaievsk 
before  the  sea-freezing  season,  and  consequently  the  fact  that  she  en- 
countered the  disaster  cannot  be  taken  as  evidence  that  her  original 
object  of  transporting  contraband  of  war  had  been  abandoned.  It  is 
admitted  by  International  Law  that  when  the  object  of  a  ship's  voyage 
is  the  importation  of  contraband  of  war,  she,  even  being  a  neutral  ship, 
may  be  confiscated.  Besides,  as  explained  above,  this  ship  took 
fraudulent  means  in  order  to  accomplish  her  voyage.  For  the  above 
reasons,  her  confiscation  together  with  the  cargo  by  the  original  Court, 
was  quite  reasonable,  and  the  appeal  is  groundless.  The  decision  is 
therefore  given  as  follows: 

This  appeal  is  hereby  dismissed. 

Given  this  12th  day  of  the  3rd  month  of  the  39th  year  of  Meiji, 
at  the   Higher  Prize   Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 

Case  VI.     The  Scotsman. 
Published  in  the  Official  Gazette,  Tokyo,  on  Sept.  28,  1905. 

Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  7th  of  the  6th  month  of 
the  38th  year  of  Meiji,  by  the  Yokosuka  Prize  Court  in  the  case  of 
the  British  steamship  Scotsman. 

No.  XI.-1. 

Decision. 
Petitioners — The  London  Steamship  Co.,  London,  England. 

John  White,  Manager. 
Advocate — G.  Akiyama,  Counsellor  at  Law,  75,  Yamashita 
Cho,  Yokohama. 


CHAP.  IV.]  CONTRABAND  GOODS.  683 

In  the  case  of  the  British  steamship  Scotsman,  trial  has  been  held 
and  the  following  decision  given: 

Text  of  the  Decision. 
The  British  steamship  Scotsman  is  hereby  confiscated. 

Facts  and  Grounds  of  the  Decision. 

The  steamship  Scotsman  is  the  property  of  the  petitioner,  and  is 
a  merchantman,  registered  at  London,  flying  the  British  flag.  Accord- 
ing to  the  charter  party  entered  into  at  Shanghai,  China,  on  the  4th 
of  the  1st  month  of  the  38th  year  of  Meiji,  between  Dodwell  &  Co., 
L'm'd,  Shanghai,  agents  of  the  petitioner,  and  R.  Perez  &  Co.  (the 
firm  was  dissolved  on  the  12th  of  the  2nd  month  of  the  same  year 
and  the  business  transferred  to  a  Shazaron  (?)  &  Co.  of  Shanghai ) , 
the  ship  took  in  at  Saigon,  French  dominion,  about  20,000  bags  (about 
134,000  pounds  in  weight)  of  Saigon  rice  with  the  object  of  transport- 
ing it  to  Vladivostock.  The  consignee  is  P.  Losie(?),  &  P.  Veal  of 
Saigon,  agents  of  R.  Perez  &  Co.,  and  the  consignee  is  put  down  in 
the  bill  of  lading  as,  "  to  order."  The  charter  party  was  not  carried 
by  the  ship.  On  the  24th  of  the  1st  month  of  the  same  year,  the  ship 
left  Saigon  bound  for  Vladivostock  and  arrived  at  Hongkong  on  the 
29th  of  the  same  month.  After  leaving  the  latter  port  on  the  1st 
of  the  2nd  month,  she  purposely  took  a  circuitous  route,  and  while 
attempting  to  proceed  to  Vladivostock  by  the  Strait  of  Tsugaru,  on 
the  14th  of  the  same  month  at  7  p.m.,  she  was  captured  by  the  Japa- 
nese torpedo  boat,  No.  30,  near  the  Shiokubi  lighthouse  in  the  Strait 
of  Tsugaru. 

The  above  facts  are  clear  from  the  statement  submitted  by  Junior 
Lieutenant  R.  Tominaga,  representative  of  the  commanding  officer  of 
torpedo  boat,  No.  30;  from  the  testimony  given  by  Lieutenant  N. 
Nagasama,  representing  the  commanding  officer  of  torpedo  boat,  No. 
30,  and  by  Edward  Albert  Mackenzie,  master  of  the  steamship  Scots- 
man; and  from  the  certificate  of  the  ship's  nationality,  the  clear- 
ances from  Saigon  and  Hongkong,  the  manifest,  the  bill  of  lading, 
the  log-book,  the  charter  party  produced  by  the  petitioner's  advo- 
cate, the  certificate  of  R.  Perez  prepared  at  the  Spanish  Consulate  at 
Shanghai,  etc. 

The  purport  of  the  petition  is  as  follows: 

Even  if  the  cargo  is  contraband  of  war,  the  ship  should  not  be 
confiscated  together  with  it,  for  it  was  not  the  property  of  the  owner. 
Moreover,  the  owner  had  no  knowledge  of  the  transportation  of  con- 
traband of  war;  and  the  destination  of  the  ship  and  cargo  to  Vladi- 
vostock was  clearly  stated  in  the  ship's  papers  and  no  false  statement 


584  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

was  made  in  them.  The  ship  did  not  carry  the  charter  party  at  the 
time  of  capture,  because  the  contract  was  concluded  at  Shanghai  while 
she  was  at  Saigon  and  there  was  no  time  to  forward  it. 

Furthermore,  rice,  even  when  transported  to  a  port  where  the  enemy's 
forces  are  assembled,  is  not  restricted  to  their  use,  but  is  useful  also 
for  the  support  of  people  outside  the  military  service.  The  unreason- 
ableness of  including  rice  among  contraband  goods  has  been  argued 
by  many  Continental  scholars.  In  England  also,  during  the  South 
African  War,  Dr.  Holland,  after  recounting  the  English  usage,  argued 
that  provisions  should  be  contraband  of  war  only  when  clearly  destined 
to  the  enemy's  army,  navy  or  forts;  and  even  then,  only  the  right  of 
pre-emption  should  be  exercised.  During  the  French- Chinese  Hostility 
in  1885,  when  France,  from  strategical  necessity,  waived  her  tradi- 
tional principle  and  declared  rice  contraband  of  war,  England  made 
a  strong  protest  and  insisted  upon  the  unreasonableness  of  including  it 
among  contraband  goods.  In  the  Chino-Japanese  War,  England  and 
France  made  an  unconditional  opposition  to  China  when  the  latter 
country  declared  rice  contraband  of  war,  and  to  this  opposition,  our 
country,  it  seems,  did  not  object.  Thus  almost  all  the  powers  agree 
in  not  considering  rice  contraband  of  war,  and  this  principle  is  gen- 
erally recognised  by  scholars.  Now  admitting  that  Japan  declared 
rice  contraband  only  during  the  Russo-Japanese  War  and  only  when 
clearly  destined  to  the  enemy's  forces,  still  it  is  proper  to  consider 
it,  when  transported  to  a  port  like  Vladivostock  which  has  the  dual 
character  of  a  commercial  and  a  naval  port,  as  destined  to  Vladivos- 
tock, the  commercial  port,  and  not  as  intended  for  military  use.  This 
is  very  clear  from  the  decision  of  the  case  of  the  Neptunus  captured  in 
1766  during  the  Dutch-English  War.  Moreover,  rice  is  not  a  usual 
food  of  the  Russians,  while  on  the  other  hand  there  are  many  for- 
eigners residing  at  Vladivostock  who  use  it  as  such.  As  to  the  ob- 
scurity with  regard  to  the  consignee,  it  was  because  the  bill  of  lading 
was  prepared  in  the  form  making  the  cargo  deliverable,  "  to  order," 
and  there  is  nothing  strange  in  this.  For  the  above  reasons,  the  pe- 
titioner requests  a  decision  releasing  the  ship. 

After  due  consideration  the  Court  concludes  as  follows: 
Vladivostock  is  the  only  Russian  naval  port  in  the  East,  and  is 
actually  the  base  of  a  Russian  squadron.  Since  the  outbreak  of  the 
Russo-Japanese  War,  the  Russian  Government  has  made  it  a  depot 
where  they  have  been  devoting  their  whole  energy  to  collecting  mili- 
tary stores;  and  ordinary  trade  there  had  almost  ceased.  These  are 
conspicuous  facts,  and  any  goods  such  as  rice,  the  cargo  of  this  case, 
which  become  contraband  of  war  according  to  circumstances,  should 
be   considered,   when   destined  to   Vladivostock,   as    intended   for   mili- 


CHAP.  IV]  -         CONTRABAND  GOODS.  685 

tary  use,  unless  there  is  strong  proof  to  the  contrary.  Especially  in 
this  case,  notwithstanding  the  statement  in  the  bill  of  lading  that  the 
cargo  was  to  be  delivered  to  order,  the  master  states  that  upon  his 
arrival  at  Vladivostock  he  was  to  be  informed  with  regard  to  the  con- 
signee by  an  ice-breaker;  and  in  the  charter  party,  there  is  an  article 
to  the  effect  that  the  ship  was  entitled  on  arrival  at  Vladivostock,  if 
necessary,  to  the  service  of  an  ice-breaker  free  of  charge.  Now,  ac- 
cording to  the  Handbook  of  Siberia,  1901-1902,  published  by  the 
authority  of  the  Russian  Maritime  Provinces,  the  ice-breakers  of 
Vladivostock  belong  to  the  Siberian  Squadron  of  the  Russian  Navy. 
The  gross  tonnage  of  this  ship  is  1679  tons,  and  according  to  the 
manifest,  the  value  of  her  cargo  was  about  210,000  francs;  but  the 
charterer  paid  the  exorbitant  sum  of  6250  pounds,  British  currency,  for 
her  voyage  from  Saigon  to  Vladivostock.  Again,  according  to  the  state- 
ment of  the  master,  he  thought  that  the  owner  paid  a  high  rate  of 
insurance  for  this  voyage,  expecting  confiscation  of  the  ship,  so  that 
it  is  impossible  to  consider  the  shipment  in  this  case  as  an  ordinary 
mercantile  transaction.  Moreover,  although  the  petitioner's  advocate 
pleads  that  rice  is  not  a  usual  food  of  the  Russians,  yet  according  to 
the  food  Regulations  of  Russia,  rice  is  used  by  the  Russian  forces 
as  food,  and  it  is  a  conspicuous  fact  that  the  Russian  forces  in  the 
East  are  employing  Chinese,  Koreans,  etc.,  who  eat  rice  as  usual 
food.  Summing  up  these  facts,  the  rice  on  board  this  ship  must  be 
assumed  to  be  military  stores  belonging  to  the  Russian  Government, 
and  consequently  it  is  proper  to  consider  it  as  contraband  of  war. 
The  advocate,  citing  the  opinion  of  Continental  scholars  and  of  the 
British  writer,  Dr.  Holland,  and  instances  in  the  Franco-Chinese  and 
Chino-Japanese  Wars,  states  that  almost  all  the  Powers  agree  in  not 
considering  rice  as  contraband  of  war  and  that  the  principle  is  gen- 
erally recognised  by  scholars.  But  Dr.  Holland  and  other  British 
scholars  affirm  that  rice  should  be  considered  contraband  only  when 
clearly  destined  to  the  enemy's  army,  navy  or  forts.  In  the  present 
war  when  Russia  declared  rice  absolutely  contraband,  Great  Britain 
made  a  protest  that  she  would  consent  to  the  belligerents  including 
rice  among  conditionally  contraband  goods,  but  that  specifying  it  as 
absolutely  contraband  was  against  International  Law  and  usage  (The 
Blue  Book  of  1905,  correspondence  with  Russia,  No.  1,  the  instruction 
of  Lord  Lansdowne,  British  Minister  of  Foreign  Affairs,  given  to  Sir 
Charles  Hardinge,  Ambassador  accredited  to  St.  Petersburg,  dated 
the  1st  June,  1904).  From  these  one  can  easily  see  what  the  British 
principle  is.  The  same  principle  is  maintained  by  the  United  States 
of  America,  which  is  clear  from  the  usage  of  that  state  and  from  the 
opinion  of  her  scholars.     Russia,  too,  in  this  war  declared  rice  as  con- 


686  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

traband,  as  has  been  stated.  Thus  the  argument  of  the  petitioner's 
advocate,  that  all  Powers  agree  in  holding  rice  as  non-contraband,  is 
entirely  groundless.  In  the  instance  in  the  Franco-Chinese  Hostilities, 
cited  by  the  advocate,  Great  Britain  protested,  as  she  did  to  Russia, 
to  France's  specifying  rice  as  absolutely  contraband,  but  not  to  her 
holding  it  as  conditionally  contraband.  Again,  admitting  the  instance 
in  the  Chino-Japanese  War  cited  by  the  advocate,  yet  Japan,  in  Art.  X. 
of  her  Regulations  Governing  Captures  at  Sea  of  that  time,  included 
provisions  among  conditionally  contraband  goods,  and  no  alteration 
was  made  during  that  war.  Next,  the  petitioner's  advocate  pleads 
that  the  ship  was  not  furnished  with  a  charter  party  because  there 
was  no  time  to  forward  it.  But  according  to  that  document,  the  con- 
tract was  concluded  at  Shanghai  on  the  4th  of  the  1st  month  of  this 
year,  while  the  ship  was  at  Kobe;  and  as  the  ship  left  Saigon  for 
Vladivostock  on  the  24th  of  the  same  month,  arrived  at  Hongkong  on 
the  29th  and  left  on  the  1st  of  the  2nd  month,  it  must  be  considered 
that  there  was  sufficient  time,  but  nevertheless  the  ship  was  not 
furnished  with  that  document.  Moreover,  the  owner,  as  has  been  stated, 
chartered  the  ship  to  transport  rice  to  Vladivostock  for  an  exorbitant 
sum  of  money;  he  paid  a  very  high  rate  of  insurance,  expecting  cap- 
ture by  Japanese  men-of-war;  the  consignee  of  the  cargo,  according 
to  the  master's  statement,  was  to  be  intimated  to  him  by  an  ice- 
breaker belonging  to  the  Russian  Navy;  in  the  charter  party  there  is 
an  article  entitling  the  ship  to  receive  assistance  from  an  ice-breaker 
free  of  charge;  according  to  the  master's  statement,  he  received  orders 
from  the  owner  concerning  this  voyage;  the  ship  purposely  took  a 
circuitous  course  in  going  to  Vladivostock;  and  the  cargo  consisted 
of  nothing  but  rice,  which  is  contraband  of  war.  Considering  these 
facts,  it  may  be  assumed  that  the  owner  not  only  knew  that  the  cargo 
consisted  of  military  stores  belonging  to  the  Russian  Government,  but 
that  he  deliberately  undertook  the  transportation.  In  other  words,  the 
petitioner  employed  his  ship  to  assist  the  enemy;  and  when  a  ship  is 
guilty  of  such  an  act,  she  is  liable  to  confiscation  together  with  the 
contraband  cargo.  This  is  recognised  both  in  the  theory  and  the  usage 
of  International  Law. 

As  this  ship  is  confiscable  for  the  above  reasons,  there  is  no  need 
of  answering  the  other  points  of  the  advocate's  argument;  and  the 
decision  as  stated  in  the  text  has  been  given. 

Given  this  7  th  of  the  6th  month  of  the  38th  year  of  Meiji,  at  the 
Yokosuka  Prize  Court,  the  Public  Procurator,  Y.  Kobayashi,  taking 
part. 

(Signed)    The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 


CHAP.  IV.]  CONTRABAND  GEODS.  687 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 

Published  in  the  Official  Gazette,  Tokyo,  on  Sept.  28,  1905. 

The  following  decision  was  given  by  the  Higher  Prize  Court  on 
the  5th  of  the  9th  month  of  the  38th  year  of  Meiji,  in  the  case  of 
the  British  steamship  Scotsman. 

Case  No.  LXXV. 

Decision. 
Petitioner — The    Lombard    Steamship    Co.,    20,    Great    St. 

Hales,  London,  England. 
Advocate — G.  Akiyama,  Counsellor  at  Law,  75,  Yamashita 
Cho,  Yokohama. 

A  protest  has  been  filed  by  G.  Akiyama,  advocate  of  the  petitioner, 
.the  Lombard  Steamship  Co.,  against  the  decision  of  the  Sasebo  Prize 
Court  given  on  the  7th  of  the  6th  month  of  the  38th  year  of  Meiji, 
in  the  case  of  the  British  steamship  Scotsman,  captured  by  the  Japa- 
nese torpedo  boat,  No.  30,  on  the  14th  of  the  2nd  month  of  the  38th 
year  of  Meiji,  near  the  Shiokubi  lighthouse  in  the  Strait  of  Tsugaru. 
^The  original  decision  condemned  the  ship.  The  protest  has  been  tried 
before  this  Court,  the  Public  Procurators,  K.  Tsuzuki  and  B.  Ishi- 
watari,  taking  part. 

The  purport  of  the  protest  filed  by  G.  Akiyama,  the  petitioner's 
advocate,  is  as  follows: 

The  decision  of  the  Yokosuka  Prize  Court  given  on  the  7th  of 
the  6th  month  of  the  38th  year  of  Meiji,  confiscating  the  steamship 
Scotsman,  is  unlawful;  and  the  advocate  requests  that  it  be  over-ruled 
and  a  new  decision  given  releasing  the  ship.  As  the  grounds  of  his 
appeal,  he  states: 

( 1 )  The  transportation  of  the  cargo  by  this  ship  was  a  legitimate 
mercantile  transaction  which  neutrals  are  at  liberty  to  carry  on,  and 
the  confiscation  by  the  original  court  of  the  ship  together  with  the 
cargo,  as  guilty  of  assisting  the  enemy,  was  unreasonable. 

(2)  A  ship  that  undertakes  the  transportation  of  contraband  goods 
undertakes  a  mercantile  transaction,  so  that,  excepting  the  case  in 
which  the  owner  of  the  ship  and  the  owner  of  the  cargo  are  the  same, 
the  ship  should  not  be  confiscated.  On  the  other  hand,  in  the  case 
of  an  owner,  who  has  performed  unneutral  service,  punishment  shall 
be  confiscation  of  the  ship.  This  is  a  general  rule  of  International 
Law.  The  original  Court,  however,  ignored  this  rule  and  gave  de- 
cision, confiscating  the  ship  on  the  ground  that  the  ship  was  liable 
to   confiscation   together  with  the   contraband   cargo   for   having  com- 


688  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

mitted  an  act  to  assist  the  enemy.  The  decision  is,  therefore,  unlaw- 
ful. Regarding  the  penalty  for  transporting  contraband,  the  general 
rule  of  International  Law  is  not  to  inflict  any  punishment  upon  the 
ship  except  the  loss  of  time,  expense  and  freight.  But  some- 
times, when  the  owner  of  the  ship  is  also  the  owner  of  the  con- 
traband cargo,  or  when  the  ship  uses  fraudulent  means  in  taking 
the  contraband  cargo,  the  ship  is  confiscated  together  with  the  con- 
traband cargo.  In  these  cases,  the  collusion  of  the  owner  in  the 
transportation  of  contraband  is  clear,  and  he  being  guilty  of  illegal 
conduct,  the  ship  used  for  the  purpose  is  of  course  liable  to  confisca- 
tion. But  in  the  case  under  consideration,  the  ship  carried  common 
merchandise  belonging  to  another  person,  and  was  not  engaged  in  the 
transportation  of  contraband.  And  even  if  it  were  admitted  that  the 
cargo  was  contraband,  she  did  not  transport  it  knowingly  or  by  fraud. 
Yet  the  original  Court  considered  her  as  intending  to  assist  the  enemy 
and  decreed  her  confiscation,  as  if  she  were  guilty  of  unneutral  service. 
The  decision  was,  therefore,  unlawful. 

(3)  In  transporting  the  cargo  from  Saigon  to  Vladivostock,  she 
did  not  use  fraudulent  means.  This  is  very  clear  from  her  papers,  in 
which  it  was  clearly  stated  that  she  was  bound  for  Vladivostock  and 
in  none  of  which  was  a  false  destination  mentioned.  Thus,  there  is 
no  doubt  that  she  never  tried  to  conceal  her  destination.  Yet  the 
original  Court,  summing  up  the  facts  recounted  in  the  decision,  judged 
that  the  ship  was  not  engaged  in  a  mercantile  transaction,  but  was 
guilty  of  unneutral  service,  as  she  transported  cargo  knowing  it  to 
be  military  stores  belonging  to  the  enemy.  The  decision  was,  there- 
fore, unlawful,  being  based  upon  misinterpreted  facts.     Because: 

(a)  Vladivostock  is  Russia's  only  naval  port  in  the  East,  but  at 
the  same  time  it  is  her  only  commercial  port.  Its  trade  was  not  sus- 
pended when  this  cargo  was  transported,  and  merchants  of  neutral 
states  were  carrying  on  business  there.  In  case  any  goods,  useful  in 
peace  as  well  as  in  war,  are  in  transit  to  a  port  having  the  dual 
character  of  a  commercial  and  a  naval  port,  international  usage  is 
to  consider  them  as  transported  to  the  commercial  port.  This  is  very 
clear  from  the  decision  of  the  case  of  the  Neptunus,  captured  in  1798 
during  the  Dutch-English  War.  It  is,  therefore,  against  precedent  to 
consider  this  ship  as  engaged  in  the  transportation  of  contraband; 

(b)  Ice-breakers  belong  to  the  Russian  Government,  but  they 
break  ice  for  vessels  of  all  nationalities  that  go  in  or  out  of  Vladi- 
vostock and  give  them  other  assistance,  as  well  in  war  as  in  peace 
time.  Therefore,  because  there  was  an  article  in  the  charter  party 
that  this  ship  was  entitled  to  the  assistance  of  an  ice-breaker  free 
of   charge,   when  required,   or   because  the  master   thought   he   would 


CHAP.  IV.]  CONTRABAND  GOODS.  689 

learn  from  such  a  vessel  who  the  consignee  was,  the  cargo  of  this 
ship  cannot  be  regarded  as  military  stores  destined  to  the  Russian 
forces ; 

(c)  The  payment  of  a  large  sum  for  the  charter  of  this  ship  and 
the  payment  of  a  high  rate  of  insurance  by  the  owner  are  things  com- 
mon in  war  time.  Especially  when  a  ship  has  to  make  a  voyage  to 
a  belligerent  port  lying  near  the  theatre  of  war,  higher  rates  of 
charter  and  insurance  will  be  charged  than  in  peace  time,  in  order  to 
provide  against  war  risk  in  addition  to  the  ordinary  risks  of  the  sea. 
This  is  a  mercantile  usage,  generally  recognised,  and  there  is  nothing 
strange  in  it.  If  it  be  considered  extraordinary,  it  is  a  gross  mistake 
of  fact; 

(d)  The  ship  was  not  provided  with  a  charter  party,  because  there 
was  no  time  to  forward  it,  the  place  where  the  contract  was  signed 
being  far  distant  from  the  place  where  the  ship  was  lying.  Were  it 
admitted  that  there  was  sufficient  time,  the  default  was  but  negligence 
of  the  agent  and  cannot  be  considered  as  an  attempt  on  the  part  of 
the  owner  to  deceive.  And  were  there  no  charter  party  among  ship's 
papers,  the  conduct  of  the  owner  cannot  be  assumed  as  fraudulent  on 
that  account.  Moreover,  omission  of  the  charter  party  is  not  suffi- 
cient to  delude  a  captor; 

(e)  This  ship,  in  going  to  Vladivostock,  took  a  circuitous  course 
through  the  Pacific  Ocean,  because,  as  is  clear  from  the  statement  of 
the  master,  the  China  Sea  and  the  Japan  Sea  are  very  rough  at  that 
season.  It  is  the  liberty  of  a  navigator  to  change  the  course  accord- 
ing to  the  weather,  and  with  this,  even  the  owner  cannot  interfere. 
There  is  nothing  strange  in  this  ship's  taking  a  circuitous  route. 

Thus  none  of  the  facts  on  which  the  original  Court  based  its  de- 
cision is  sufficient  to  infer  that  the  petitioner  attempted  to  assist  the 
enemy. 

(4)  It  may  be  that  rice  is  included  in  the  provisions  of  the  Rus- 
sian forces,  but  it  is  an  undisputed  fact  that  it  is  not  a  usual  food 
of  the  Russians.  Moreover,  in  North  Korea  and  Manchuria,  the  Rus- 
sian forces  employed  Koreans  and  Chinese,  but  at  Vladivostock  and 
its  vicinity,  as  a  matter  of  fact,  there  were  no  such  coolies  employed. 
It  is,  therefore,  wrong  to  consider  the  cargo  of  this  ship  as  intended 
for  the  food  of  such  coolies. 

Thus  none  of  the  facts  recounted  by  the  original  Court  as  ground 
of  its  decision  is  sufficient  to  prove  this  cargo  to  be  military  stores. 
In  a  word,  rice,  even  when  transported  to  a  port  where  the  enemy's 
forces  are  assembled,  is  not  limited  to  their  use,  but  is  also  useful 
to  support  people  outside  the  military  service;  and  were  its  supply 
entirely  cut  off  the  people  would  be  reduced  to  starvation.     Therefore, 


690  NEW  CASES   ON  PRIZE   LAW.  [PART  V. 

the  unreasonableness  of  including  rice  among  contraband  goods  is  gen- 
erally maintained.  Thus  the  cargo  of  this  ship  should  be  considered 
common  merchandise,  as  there  is  no  proof  that  it  was  intended  for  the 
Russian  forces,  and  consequently,  the  confiscation  of  this  ship  was 
unlawful. 

The  gist  of  the  answer  of  K.  Yanagita,  Public  Procurator  of  the 
Yokosuka  Prize  Court,  to  the  above  protest,  is  as  follows: 

( 1 )  It  is  alleged  that  this  ship  was  engaged  to  transport  her  cargo 
under  a  charter  party;  but  as  she  was  not  furnished  with  a  duplicate 
of  that  document,  a  necessary  ship's  paper,  the  burden  of  explaining 
this  grave  default  lies,  under  International  Law,  upon  the  petitioner. 
But  the  petitioner  has  not  been  able  to  give  any  explanation.  Admit- 
ting that  the  so-called  charter  party  produced  after  the  capture  of  the 
ship  was  true,  it  is  clear  from  the  articles  of  the  contract,  from  the 
master's  statement  in  connection  with  them,  and  from  the  conduct  of 
the  ship,  that  the  owner  or  his  agent  colluded  in  the  transportation  of 
this  cargo,  knowing  it  to  be  contraband  of  war.  And  the  majority 
of  scholars  agree  that  in  such  a  case  the  penalty  of  confiscation  should 
be  inflicted  upon  the  ship  as  well  as  upon  the  cargo.  The  decision  of 
the  original  court  is,  therefore,  proper. 

(2)  The  transportation  of  contraband  goods  is  not  theoretically  a 
natural  right  of  neutrals,  and  a  belligerent  is  entitled  to  stop  such 
practice,  and  at  the  same  time  to  prevent  repetitions  in  future  by  in- 
flicting penalties.  There  are  many  cases  in  which  an  owner  takes  a 
few  contraband  goods  in  good  faith,  and  it  is  practically  impossible  to 
prove  intention  or  collusion  on  the  part  of  an  owner.  Hence,  the  gen- 
eral rule  is  to  take  some  conspicuous  circumstances  as  the  criterion  in 
making  an  assumption  and  not  to  search  into  other  circumstances.  In 
the  case  under  consideration  the  records  clearly  show  that  the  owner 
well  knew  of  the  affair  and  assisted  in  prosecuting  it;  and  there  is  no 
reason  given  in  the  petitioner's  protest  for  supposing  that  he  was  not 
guilty  of  unneutral  conduct.  Concerning  the  incompleteness  of  the 
ship's  papers,  and  other  suspicious  acts,  the  petitioner  should  have  given 
reasonable  explanations  in  order  to  avoid  responsibility;  but,  as  above 
stated,  he  has  produced  no  such  explanations.  He  alleges  that  it  was 
the  fault  of  the  agent;  but  the  aggrieved  belligerent  has  nothing  to  do 
with  the  consequence  of  the  agent's  fault  upon  the  owner.  Moreover, 
the  petitioner  only  repeats  its  formal  arguments  and  has  nothing  new 
to  say  about  this  point,  which  fact  leads  one  to  infer  that  it  was  not 
a  mistake,  but  was  done  with  intention.  It  is  probable  that  the  reason 
the  ship  was  not  furnished  with  a  duplicate  of  the  charter  party  was 
either  because  no  such  contract  had  been  concluded  and  the  sale  of  the 
cargo  was  on  the  account  of  the  owner  of  the  ship,  or  else  because 


CHAP.  IV.]         CONTRABAND  GOODS.  691 

the  wording  of  the  contract  too  clearly  showed  the  illegal  nature  of  the 
cargo  and  the  collusion  of  the  owner  in  the  transportation. 

For  the  above  reasons  the  protest  has  no  ground,  and  the  Procurator 
thinks  that  it  should  be  rejected. 

The  decision  of  this  Court  is  explained  as  follows: 
When  food  stuff,  such  as  the  rice  now  under  consideration,  is  des- 
tined to  the  enemy's  army  or  navy  or  when  it  is  destined  to  the  enemy's 
territory,  and  when  it  can  be  inferred  that  it  is  intended  for  his  military 
forces,  it  is  contraband  of  war  and  is  confiscable.  This  is  recognised 
in  International  Law.  As  to  the  destination  to  Vladivostock  of  the 
Saigon  rice  under  consideration  there  is  no  dispute,  and  Vladivostock 
is  an  important  Russian  naval  port.  Since  the  outbreak  of  the  war 
Russia  has  made  it  not  only  the  base  of  her  squadron,  but  also  a  depot 
where  she  has  been  collecting  arms,  provisions,  coal,  and  other  military 
stores,  and  ordinary  trade  there  has  almost  ceased.  These  are  conspicu- 
ous facts.  In  the  charter  party  of  the  Scotsman,  the  steamship  now 
under  consideration,  there  is  an  article  guaranteeing  that  on  the  arrival 
at  Vladivostock  the  ship  should  be  entitled,  if  necessary,  to  the  service 
of  an  ice-breaker,  free  of  charge,  to  open  a  passage  for  her,  whether  in 
or  outside  the  port.  It  is  clear  that  the  ice-breaker,  as  admitted  by  the 
petitioner,  belongs  to  the  Russian  Government.  According  to  the  state- 
ment of  the  master,  that  on  his  arrival  at  Vladivostock  he  expected  to 
receive  information  from  an  ice-breaker  as  to  who  the  consignee  was. 
And,  according  to  the  manifest,  the  cargo  was  worth  about  210,000 
francs,  but  the  charter  of  the  ship  from  Saigon  to  Vladivostock  was 
6250  pounds,  British  currency.  Considering  these  facts,  this  cargo  can- 
not be  regarded  as  common  merchandise  transported  to  Vladivostock. 
The  advocate  states  that  when  this  cargo  was  being  transported  to 
Vladivostock,  trade  there  was  not  suspended,  but  was  being  carried  on 
as  usual;  but  as  he  has  not  produced  any  evidence,  the  statement  can- 
not be  taken  as  true.  Again,  the  advocate  argues  that  the  rice,  the 
cargo  of  this  ship,  should  be  regarded,  according  to  the  precedent  of 
the  Neptunus  case,  as  intended  for  peaceful  purposes.  But  the  Neptunus 
case  and  this  case  are  quite  different  in  the  circumstances  of  the  places 
of  destination;  hence,  the  former  cannot  be  taken  as  a  precedent.  In 
a  word,  the  original  court  was  right  in  considering  the  Saigon  rice,  the 
cargo  of  this  ship,  as  contraband  of  war.  Summing  up  the  facts  above 
mentioned,  which  lead  us  to  assume  that  the  Saigon  rice  consigned  to 
Vladivostock  in  this  ship  was  not  common  merchandise,  and  the  fact 
that  the  whole  of  the  cargo  was  rice,  which  is  contraband,  together 
with  the  statement  of  the  master  that  the  owner  would  not  incur  any 
loss  if  the  ship  were  confiscated,  as  he  had  her  insured  for  a  sufficient 
sum,  expecting  capture,  we  can  safely  assume  that  the  object  of  this 


692  NEW   CASES   ON   PKIZE   LAW.  [PART  V. 

ship  was  the  transportation  of  contraband  of  war.  And  the  confisca- 
bility  of  a  ship  whose  object  is  the  transportation  of  contraband  of 
war  is  recognised  in  International  Law,  and  this  Court  deems  it  to  be 
reasonable.  For  the  reasons  explained  above,  the  decision  of  the  orig- 
inal court  confiscating  this  ship  is  just,  so  that  there  is  no  need  to 
answer  the  other  points  of  the  protest. 

The  decision  of  this  Court  is,  therefore,  as  follows: 

This  protest  is  hereby  rejected. 

Given  this  5th  day  of  the  9th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)  The  President  and  Councillors  of  the 
Higher  Prize  Court. 


Case  VII.     The  Severus. 
Published  in  the  Official  Gazette,  Tokyo,  on  May  20,  1905. 
Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  28th   of  the  4th  month  of 
the  38th  year  of  Meiji,  by  the  Yokosuka  Prize  Court,  in  the  case  of  the 
German  steamship  Severus. 

Decision. 
No.  XIII. 

In  the  case  of  the  German  steamship  Severus,  trial  has  been  held 

and  the  following  decision  has  been  given: 

Text  of  the  Decision. 
The  German  steamship  Severus  and  3845  tons  of  coal  on  board  are 
hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 
The  steamship  under  consideration  is  the  property  of  Claus  Peter 
Anderson,  of  Hamburg,  Germany,  and  is  a  steel  vessel  of  2133.42  tons 
register.  She  is  registered  at  Hamburg,  and  flies  the  German  flag. 
The  ship  took  in,  at  Cardiff,  3845  tons  of  twice-sifted  Cardiff  coal,  with 
the  object  of  transporting  it  to  Vladivostock.  The  consignor  of  the 
cargo  is  Powell  Dufferin  &  Co.,  of  Cardiff,  and  its  destination  is  put 
down  in  the  bill  of  lading  as  Manila,  but  its  owner  is  not  known.  The 
ship  obtained  a  clearance  as  bound  for  Manila,  and  left  the  port  of 
Cardiff  on  the  24th  of  November,  1904.  She  called  at  Algiers,  Port 
Said,  Saban,  and  Labuan.  After  leaving  the  last-named  port  on  the 
31st  of  January,  1905,  she  did  not  touch  either  at  Manila  or  any  other 
place,  but  passed  the  Philippine  Archipelago  and  entered  the  Pacific 
Ocean,  intending  to  proceed  to   Vladivostock  by  a  route  as  far  from 


CHAP.  IV.]  CONTRABAND  GOODS.  693 

Hokkaido  as  possible,  making  first  for  Olga  Bay,  Russia,  by  way  of 
the  straits  of  Yetorup  and  Sova,  and  there  hiring  a  pilot  for  her  des- 
tination. According  to  this  plan  she  had  passed  the  Strait  of  Yetorup 
and  arrived  off  Shebetoro,  when,  on  the  23rd  of  2nd  month  of  the  38th 
year  of  Meiji,  at  about  1  p.m.,  she  was  hailed  by  the  Japanese  man- 
of-war  Hongkong  Maru.  She  answered  that  she  was  going  to  Olga  Bay 
with  coal  on  board,  and  was  captured  by  the  same  man-of-war. 

The  above  facts  are  clear  from  the  statement  submitted  by  Sub- 
Lieutenant  K.  Nishiuchi,  I.  J.  N.,  representative  of  Captain  T.  Inoue, 
commanding  the  Hongkong  Maru;  from  the  testimony  given  by  Wil- 
helm  Bernt,  master  of  steamship  Severus,  and  Sub-Lieutenant  K.  Nishi- 
uchi, I.  J.  N.;  from  the  bill  of  lading,  three  clearance  certificates,  cer- 
tificate of  the  ship's  nationality,  two  volumes  of  the  ship's  log-book, 
one  volume  of  the  rough  log,  and  the  copy  of  the  testimony  given  by 
Orefenitz,  master  of  the  steamship  Romulus,  in  connection  with  the 
trial  of  that  vessel. 

After  due  consideration,  the  Court  concludes  as  follows: 
Vladivostock  is  an  important  Russian  naval  port  in  the  East,  and 
is  actually  a  base  of  the  Russian  fleet.  Moreover,  since  the  outbreak 
of  the  Russo-Japanese  War,  the  Russian  Government  has  been  employ- 
ing the  port  as  a  base  of  supplies  and  has  been  exerting  its  whole  energy 
to  collect  military  stores  there.  Thus  common  trade  has  been  almost 
totally  suspended.  This  is  a  conspicuous  fact,  and  consequently  goods, 
such  as  coal,  provisions,  etc.,  which  become  contraband  of  war  accord- 
ing to  circumstances,  must  be  considered,  when  in  transit  to  that  port, 
as  intended  for  military  use,  unless  there  is  evidence  to  the  contrary. 
Especially  the  cargo  under  consideration  being  Cardiff  coal,  used  in 
this  part  of  the  world  only  by  men-of-war,  and  being  clearly  intended 
for  naval  use,  must  be  considered  contraband  of  war.  Furthermore,  the 
destination  of  the  ship  to  Vladivostock  had  been  determined  before  she 
left  Cardiff.  Notwithstanding  this,  the  port  of  destination  is  put  down 
in  the  bill  of  lading  and  clearance  as  Manila,  a  neutral  port.  At 
Labuan  she  again  obtained  clearance,  under  the  pretence  of  going  to 
Manila,  and  after  leaving  the  former  port  she  intentionally  took  a  cir- 
cuitous route  and  attempted  to  proceed  to  Vladivostock  by  way  of  the 
Strait  of  Soya.  These  actions  cannot  be  pardonable  negligence,  nor  can 
they  be  considered  as  measures  taken  from  any  convenience  of  naviga- 
tion, but  must  be  considered  as  tricks  to  evade  capture  by  hiding  the 
place  of  her  destination.  The  master  of  the  ship  says  that  although 
the  statement  in  the  clearance — that  the  ship  was  bound  for  Manila — 
was  false,  yet  the  record  in  the  log-book  was  true,  and  her  real  desti- 
nation was  Olga  Bay.  But  Olga  Bay  was  not  her  true  destination,  and 
ship  and  cargo  were  bound  for  Vladivostock.     This  is  clear  from  the 


694  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

following:  In  the  ship's  log-book,  when  the  ship  left  Labuan  on  January 
31st,  1905,  it  is  stated  that  as  the  steamship  Romulus  was  bound  to 
the  same  port  as  herself,  it  was  decided  to  ask  that  ship  to  bring  one 
Brandt,  a  coal  passer  of  the  Severus,  who  was  under  arrest  on  shore  at 
the  time  of  her  departure.  In  the  copy  of  the  testimony  given  by 
Grefenitz,  master  of  the  German  steamship  Romulus,  which  was  owned 
by  the  same  person,  left  the  same  place  with  a  similar  cargo,  and  was 
bound  for  the  same  port  as  the  ship  under  consideration,  the  master 
states  that  he  took  on  board  Brandt,  one  of  the  crew  of  the  Severus; 
that  the  destination  of  the  Romulus  was  ostensibly  Hongkong,  but  that 
she  was  to  go  first  to  Olga  Bay  to  hire  a  pilot  there  for  Vladivostock, 
and  that  he  ought  to  have  entered  in  the  log-book  the  ship's  destina- 
tion as  Olga  Bay,  but  that  he  did  not  do  so  in  order  not  to  let  the 
crew  know  it.  Now,  comparing  these  two  statements,  it  is  very  clear 
that  the  destination  of  the  ship  and  cargo  under  consideration  was 
Vladivostock.  In  a  word,  the  ship  was  engaged  in  the  transportation 
of  contraband  of  war  under  false  pretences.  And  when  fraudulent  acts 
are  committed  by  a  vessel,  the  vessel,  as  well  as  the  contraband  cargo, 
are  liable  to  confiscation.  This  is  recognised  both  in  the  theory  and 
precedents  of  International  Law.  The  decision  as  stated  in  the  text 
has,  therefore,  been  given. 

Given  this  28th  day  of  the  4th  month  of  the  38th  year  of  Meiji,  at 
the  Yokosuka  Prize  Court»  after  hearing  the  opinion  of  the  Public 
Procurators  of  the  Court. 

(Signed)     The  President  and  Councillors  op  the 
Yokosuka  Prize  Court. 

Case  VIII.     The  Tacoma. 
Published  in  the  Official  Gazette,  Tokyo,  on  June  15,  1905. 
Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  1st  of  the  6th  month  of  the 
38th  year  of  Meiji,  by  the  Yokosuka  Prize  Court,  in  the  case  of  the 
United  States  steamship  Tacoma. 

Decision. 
No.  XVIIL— 1. 

Petitioner — The   Northwestern   Steamship    Company,   Ltd., 

Seattle,  King  County,  Washington,  North  America. 

Representative — John  Rojine  (?),  President  of  the  company. 

Advocate — G.  Akiyama,  Counsellor  at  Law,  15  Uneme  Cho,. 

Kyobashi  Ku,  Tokyo. 

In  the  case  of  the  United  States  steamship  Tacoma,  a  trial  has  been 
held  and  the  following  decision  given: 


CHAP.  IV.]  CONTRABAND  GOODS.  695 

Text  of  the  Decision. 
The  United  States  steamship  Tacoma  is  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 
The  steamship  Tacoma,  now  under  consideration,  which  is  a  mer- 
chantman owned  by  the  petitioner,  flying  the  United  States  flag  and 
registered  at  Seattle,  in  the  State  of  Washington,  took  on  board  at  the 
port  of  Seattle  about  9000  barrels  of  salt  beef  (part  of  this  was  given 
to  the  ship's  crew  as  food  during  the  voyage)  and  a  quantity  of  steel 
bars  and  1  box  of  machine  appurtenances,  with  the  object  of  transport- 
ing them  to  Vladivostock.  Of  the  above  cargo,  the  salt  beef  was  pur- 
chased in  America  by  the  Russian  merchant  Demby  and  the  Ebiky 
Company,  both  of  Shanghai,  who  entered  into  contracts,  in  November 
of  last  year,  with  Major-General  Dessino,  Shanghai,  to  supply  Vladivos- 
tock with  such  goods,  and  was  consigned  by  Charles  Nelson  and  Com- 
pany, of  San  Francisco,  in  the  State  of  California,  to  the  Russo-Chinese 
Bank,  of  Vladivostock;  and  the  steel  bars  and  machine  appurtenances 
are  the  property  of  the  Russian  subject  Alexander  Georgevich  Bole- 
man,  supercargo  of  the  ship,  who  was  on  board  in  that  capacity  accord- 
ing to  the  order  of  the  petitioner.  (The  said  Boleman  is  representative 
and  agent  of  Demby,  with  the  full  power  of  purchasing  goods  to  be 
supplied  to  the  Government  establishments,  individual  persons,  and  com- 
panies. He  is  also  intrusted  by  the  above-mentioned  Ebiky  Company 
with  the  duties  of  examining  salt  beef  to  be  purchased  in  America  and 
to  be  transported  to  Vladivostock,  and  of  delivering  it  to  the  consignee, 
taking  the  same  ship  in  which  the  beef  is  freighted.)  Before  leaving 
Seattle  the  master  received  instructions,  dated  January  2,  1905,  from 
the  owner  of  the  ship  to  proceed  to  Vladivostock,  and  in  case  there 
should  be  obstruction  from  blockade  or  ice,  then  to  proceed  to  Shang- 
hai. In  spite  of  these  instructions,  he  pretended  the  port  of  destination 
to  be  Shanghai  and  obtained  clearance  and  health  certificate.  In  the 
copy  of  the  freight  list  submitted  to  the  Custom  House  the  same  pre- 
tence was  made,  that  the  port  of  destination  was  Shanghai,  and  in 
the  other  copy  of  the  freight  list  the  port  of  destination  is  put  down 
as  Shanghai  via  ports.  In  the  freight  bill  the  part  where  the  port  of 
destination  is  entered  is  torn  off.  Thus,  on  January  5th,  the  ship  left 
Seattle;  and  in  the  ship's  journal  and  its  duplicate  deck  journal  and 
engineer's  journal  it  is  entered  that  the  ship  was  bound  for  Shanghai. 
On  the  way  she  called  at  Dutch  Harbour,  and  left  there  on  the  19th 
of  the  same  month,  after  coaling.  She  steered  along  the  Aleutian 
Archipelago,  passed  the  Boussole  Channel,  and  entered  the  Okhotsk  Sea. 
She  then  attempted  to  proceed  to  Vladivostock,  but  floating  ice  block- 
aded her  way  and  she  lost  her  freedom  of  movement.    Thus  she  drifted 


696  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

hither  and  thither  for  ten  days.  On  March  13th  she  regained  her 
freedom  of  movement,  and  was  about  to  resume  her  voyage  to  her  des- 
tination, when,  on  March  14,  at  8  a.m.,  she  was  captured  by  the  Japa- 
nese man-of-war  Takachiho  at  about  40  miles  southwest  of  Cape  Shibe- 
tonitara,  Shikotan  Island. 

The  above  facts  are  clear  from  the  statement  submitted  by  Lieu- 
tenant Ukawa,  I.  J.  N.,  representative  of  the  captain  of  the  Japanese 
man-of-war  Takachiho;  from  the  testimony  given  by  the  same  officer 
and  S.  S.  Knowlton  (?),  master  of  the  steamship  Tacoma,  and  Alex- 
ander Georgevitch  Boleman,  supercargo  of  the  ship;  and  from  the  papers 
found  in  possession  of  the  said  Boleman,  the  certificate  of  the  ship's 
nationality,  bill  of  lading  (the  master  says  that  this  document  is  a  bill 
of  lading  and  at  the  same  time  a  charter-party;  but  from  its  nature 
it  is  deemed  to  be  the  former),  the  clearance,  health  certificate,  two 
copies  of  the  freight  list,  freight  bill,  ship's  journal  and  its  duplicate, 
deck  journal,  engineer's  journal,  letter  of  the  owner  of  the  ship  addressed 
to  the  master,  under  the  date  of  January  2nd,  1905,  etc. 

The  substance  of  the  petition  is  that  the  cargo  of  the  steamship 
under  consideration  is  not  the  property  of  the  owner  of  the  ship,  and 
consequently  she  is  not  forfeitable  with  the  cargo,  even  if  the  cargo  be 
contraband  of  war;  that  the  owner  of  the  ship  instructed  the  master 
by  a  written  document,  dated  February  5th  of  this  year  (probably  a 
mistake  for  January  2nd),  to  proceed  to  Vladivostock,  and  in  case  it 
should  be  impossible  to  reach  there  on  account  of  blockade  of  ice,  then 
to  proceed  to  Shanghai;  and  he  also  caused  to  be  entered  in  the  bill  of 
lading  that  the  ship  was  bound  to  Vladivostock,  which  facts  show  that 
the  owner  of  the  ship  undertook  the  transportation  in  good  faith;  that 
the  master  put  down  in  the  freight  list,  clearance,  etc.,  the  port  of 
destination  as  Shanghai,  knowing  the  will  of  the  owner  of  the  ship  and 
apprehending  the  case  of  being  unable  to  reach  Vladivostock,  and  thus 
it  was  not  a  pretence  to  elude  capture;  that  the  contradiction  of  the 
port  of  destination  in  different  papers  can  be  discovered  at  a  glance  is 
not  calculated  to  deceive  a  captor,  so  that  International  Law  cannot 
consider  it  as  a  means  of  deceiving;  that  salt  beef  is  not  absolute  con- 
traband of  war,  and  in  case  such  an  article  is  to  be  transported  to  a 
port  like  Vladivostock,  which  has  the  dual  character  of  a  naval  and 
commercial  port,  it  ought  to  be  considered  as  an  article  destined  for 
Vladivostock  the  commercial  port,  and  not  as  supplied  for  military  use, 
unless  there  is  counter  evidence.  This  is  clear  from  the  decision  of  the 
case  of  the  Neptunus,  captured  during  the  war  between  England  and 
Holland  of  1798.  In  the  case  of  the  article  in  question  this  is  the  more 
so,  since  salt  beef  is  not  limited  to  military  use;  that  the  steel  bars 
and  machine  appurtenances  are  the  property  of  one  Boleman,  a  Rus- 


CHAP.  IV.]  CONTRABAND  GOODS.  697 

sian,  by  whose  request  they  were  transported  together  with  the  other 
goods,  and  they,  too,  as  before  stated,  are  not  contraband  of  war;  and 
therefore  the  petitioner  demands  a  decision  acquitting  the  ship. 
After  due  consideration,  the  Court  concludes  as  follows: 
There  does  not  exist  any  doubt  that  the  salt  beef  was  the  enemy's 
military  provisions,  which  Major-General  Dessino,  of  the  Russian  Army, 
who  is  residing  in  Shanghai  and  is  assisting  hostile  operations  of  the 
enemy,  had  ordered  the  Russian  merchant  Demby  and  the  Ebiky  Com- 
pany, of  Shanghai,  to  buy  in  America  and  to  forward  to  Vladivostock, 
which  is  an  important  Russian  base  and  central  commissariat  station, 
such  contracts  having  been  made  between  the  Russian  General  and  the 
said  Demby  and  the  Ebiky  Company,  in  November  of  last  year;  and 
that  the  article  was  intended  for  military  purposes,  it  being  consigned 
to  the  Russo-Chinese  Bank  of  Vladivostock;  and  consequently  it  is 
right  to  consider  it  as  contraband  of  war.  The  steel  bars  and  machine 
appurtenances,  which  are  the  property  of  Boleman,  being  all  mate- 
rials for  shipbuilding,  and  there  being  no  doubt  of  their  being  destined 
to  Vladivostock,  it  is  also  clear  that  they  too  are  contraband  of  war. 
Moreover,  the  fact  that  the  ship  obtained  clearance  and  health  cer- 
tificates when  she  left  Seattle,  under  the  pretence  that  she  was  bound 
for  Shanghai,  although  her  destination  to  Vladivostock  had  been  set- 
tled before  her  departure;  that  the  freight  bill  was  torn  off  at  the  part 
where  the  port  of  destination  was  entered;  that  a  false  entry  was  made 
as  bound  for  Shanghai  in  the  ship's  journal  and  its  duplicate,  deck 
journal,  and  engineer's  journal;  and  that  the  ship  attempted  to  pro- 
ceed to  Vladivostock  via  the  Strait  of  Soya,  taking  the  route  consid- 
ered most  dangerous  in  winter,  on  account  of  snow,  wind,  and  ice,  are 
none  of  them  a  pardonable  negligence  or  a  step  taken  for  convenience 
of  navigation  or  procedure,  and  must  be  considered  as  artifice  to  con- 
ceal the  port  of  destination  and  to  elude  capture;  the  fact  that  there 
is  the  true  port  of  destination  mentioned  in  the  bill  of  lading  and  in 
the  letter  of  the  owner  of  the  ship  addressed  to  the  master,  not  being 
strong  enough  to  prove  that  there  was  no  deceitful  act  on  the  part  of 
the  ship  under  consideration.  The  intention  to  deceive  becomes  more 
apparent  from  the  written  statement  and  testimony  of  the  officer  rep- 
resenting the  captain  of  the  Takachiho,  in  which  he  says  that  when 
the  ship  was  visited  the  master  attempted  to  put  away  the  two  above- 
mentioned  documents  as  not  necessary  and  to  hide  them  from  the 
boarding  officer.  According  to  the  testimony  given  by  the  above-men- 
tioned Boleman,  the  petitioner  asked  him  to  join  the  ship  as  supercargo, 
knowing  that  the  said  Boleman  was  intrusted  with  a  special  duty  by 
the  Ebiky  Company.  The  above-mentioned  letter,  which  the  petitioner 
gave  to  the  master  before  departure,  contains  also  the  fact  that  he,  the 


698  NEW   CASES   ON  PRIZE   LAW.  [PART  V. 

petitioner,  named  routes  to  Vladivostock  and  asked  him  to  select  one 
to  escape  capture  by  Japanese  men-of-war.  Summing  up  all  these  facts, 
it  will  be  seen  that  the  petitioner  furnished  his  ship  for  transportation 
of  the  cargo,  being  well  acquainted  with  its  nature.  In  other  words, 
the  petitioner  with  his  ship  committed  an  act  of  assistance  to  the 
enemy.  There  being  thus  an  act  to  deceive  and  an  act  to  assist  the 
enemy  on  the  part  of  the  ship,  she  should  be  forfeited,  together  with 
her  cargo,  which  is  contraband  of  war,  and  such  forfeiture  is  recognised 
both  in  the  theory  and  practice  of  International  Law.  Such  being  the 
grounds  of  the  forfeiture,  there  is  no  need  to  answer  the  arguments 
of  the  petitioner,  and  the  decision,  as  stated  in  the  text,  has  been 
given. 

Given  this  1st  day  of  the  5th  month  of  the  38th  year  of  Meiji,  at 
the  Yokosuka  Prize  Court,  the  Public  Procurator,  K.  Yanagita,  being 
present. 

(Signed)     The  President  and  Councillors  of  the 

Yokosuka  Prize  Court. 

Decision  of  the  Yokosuka  Prize  Court  on  the  Same  Case  {ah out 

the  cargo). 

Published  in  the  Official  Gazette  on  June  30,  1905. 
The  following  decision  was  given  on  the  1st  of  the   6th  month  of 
the  38th  year  of  Meiji,  by  the  Yokosuka  Prize  Court,  in  the  case  of  the 
cargo  of  the  United  States  steamship  Tacoma. 

Decision. 
No.  XVIII.— 2. 

Petitioner — Charles  Nelson  &  Co.,  San  Francisco,  California, 
of  the  United  States  of  North  America. 

Representative — James  Tison,  Vice-President. 

Advocate — G.  Akiyama,  Counsellor  at  Law,  15  Uneme  Cho, 
Kyobashi  Ku,  Tokyo. 

In  the  case  of  the  cargo  of  the  United  States  steamship  Tacoma,  trial 
has  been  held  and  the  following  decision  given: 

Text  of  the  Decision. 
The  cargo  carried  by  the  United  States  steamship  Tacoma,  consist- 
ing of  about  8990  barrels  of  salt  beef,  15  steel  bars,  9  bundles  of  steel 
bars,  and  1  box  of  machine  appurtenances,  is  hereby  decided  to  be  a 
lawful  prize. 

Facts  and  Grounds  of  the  Decision. 
Of  the  goods  under  consideration,  which  have  been  consigned  by  the 
petitioner,  about  8990  barrels  of  salt  beef  (at  first  when  the  cargo  was 


CHAP.  IV.]  CONTRABAND   GOODS.  699 

loading  at  Seattle,  North  America,  there  were  about  9000  barrels  of 
salt  beef,  but  part  of  it  was  given  to  the  ship's  crew  as  food  during 
the  voyage)  were  purchased  in  America,  with  the  object  of  sending  it 
to  Vladivostock,  by  Demby,  Russian  merchant,  and  the  Ebiky  Com- 
pany, both  of  Shanghai,  according  to  the  contracts  entered  into  in 
November  of  last  year  by  said  Demby  and  Ebiky  Company  with  Major- 
General  Dessino,  Russian  Army,  also  of  Shanghai;  the  steel  bars  and 
machine  appurtenances  are  the  property  of  Alexander  Georgevitch  Bole- 
man,  and  the  petitioner  embarked  them  at  Seattle,  in  the  steamship 
Tacoma,  with  the  object  of  transporting  them  to  Vladivostock.  (The 
consignee  of  the  salt  beef  is  the  Russo-Chinese  Bank,  Vladivostock.) 
The  steamship  Tacoma  left  Seattle  on  January  5th,  1905,  and  called 
on  her  way  at  Dutch  Harbour.  She  left  the  latter  port  on  the  19th  of 
the  same  month,  steered  along  the  Aleutian  Archipelago,  passed  the 
Boussole  Channel,  and  entered  the  Okhotsk  Sea.  She  then  attempted 
to  steer  to  Vladivostock,  but  floating  ice  blocked  her  way  and  she  lost 
her  freedom  of  movement.  Thus  she  drifted  hither  and  thither  for  ten 
days.  On  March  15th  she  regained  her  freedom  of  movement,  and  was 
about  to  resume  her  voyage  to  her  destination  when,  on  March  14th, 
at  8  p.m.,  the  cargo,  together  with  the  ship,  was  captured  by  the 
Japanese  man-of-war  TakachiJw,  at  about  40  miles  southwest  of  cape 
Shibetonitara,  Shikotan  Island. 

The  above  facts  are  evident  from  the  written  statement  submitted 
by  Lieutenant  Ukawa,  I.  J.  N.,  representing  the  captain  of  the  man- 
of-war  Takachiho;  from  the  testimony  of  the  same  officer  and  of  S.  S. 
Knowlton  (?),  master  of  the  steamship  Tacoma,  and  of  Alexander  George- 
vitch Boleman,  who  had  charge  of  the  cargo;  and  from  the  papers  found 
in  the  hands  of  the  said  Boleman,  the  bill  of  lading  (the  master  says 
that  this  document  is  a  bill  of  lading  and  at  the  same  time  a  charter- 
party,  but  from  its  nature  it  is  deemed  to  be  the  former),  two  copies 
of-  freight  lists,  freight  bill,  etc. 

The  gist  of  the  petition  is  that  the  goods  in  question  are  not  from 
their  character  contraband  of  war;  that  in  case  such  goods  are  to  be 
transported  to  a  port  like  Vladivostock,  which  has  the  dual  character 
of  a  naval  and  commercial  port,  unless  there  is  counter-evidence,  they 
ought  to  be  considered  as  goods  destined  for  Vladivostock  the  com- 
mercial port,  and  not  as  supplied  for  military  use;  that  this  is  evident 
from  the  case  of  the  Neptunus,  captured  during  the  war  between  Eng- 
land and  Holland  of  1798;  that  in  the  case  of  the  goods  in  question 
this  is  the  more  necessary,  since  the  goods  are  not  limited  to  military 
use;  but  the  steel  bars  and  machine  appurtenances  are  the  property  of 
Boleman,  a  Russian,  by  whose  request  they  were  transported  together 
with  the  other  goods,  and  they,  too,  as  before  stated,  are  not  contra- 


700  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

band  of  war;   and,  therefore,  the  petitioner  demands  a  decision  acquit- 
ting them. 

After  due  consideration,  the-  Court  concludes  as  follows : 

There  can  be  no  doubt  that  the  salt  beef  in  question  was  intended 
for  the  enemy,  to  be  used  for  military  purposes,  the  goods  being  des- 
tined to  Vladivostock,  which  is  an  important  Russian  base  and  commis- 
sariat station,  and  bought  by  the  Russian  merchant  Demby  and  the 
Ebiky  Company  to  the  order  of  Major-General  Dessino,  of  the  Russian 
Army,  who  is  residing  at  Shanghai  and  assisting  the  hostile  operations 
of  the  enemy,  and  the  goods  being  consigned  to  the  Russo-Chinese  Bank 
at  Vladivostock;  therefore  it  is  right  to  consider  them  as  contraband 
of  war.  The  steel  bars  and  machine  appurtenance,  which  are  the  prop- 
erty of  said  Boleman,  being  all  materials  for  shipbuilding,  and  there 
being  no  doubt  of  their  being  destined  to  Vladivostock,  it  is  clear  that 
they,  too,  are  contraband  of  war.  And  if  they  are  contraband  of  war 
they  are  forfeitable,  even  though  transported  under  a  neutral  flag.  This 
is  recognised  by  the  Declaration  of  Paris  of  1856,  by  International  Law,, 
and  precedents. 

The  goods  under  consideration  being  forfeitable  on  the  above  grounds, 
there  is  no  need  to  reply  to  the  argument  of  the  petitioner,  and  the 
decision,  as  stated  in  the  text,  has  been  given. 

Given  this  1st  day  of  the  6th  month  of  the  38th  year  of  Meiji,  at 
the  Yokosuka  Prize  Court,  the  Public  Procurator,  K.  Yanagita,  being 
present. 

(Signed)     The  President  and  Councillors  of  the 
Yokosuka  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 
Published  in  the  Official  Gazette,  Tokyo,  on  June  31,  1905. 

The  following  decision  was  given  on  the  8th  of  the  8th  month  of 
the  38th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  case  of  the> 
United  States  steamship  Tacoma. 

Decision. 
Case  No.  LXXI. 

Petitioner — John  Rojine,  President  of  the  Northwestern 
Steamship  Company,  Limited,  Seattle,  King  County, 
Washington  State,  United  States  of  America. 

Advocate — G.  Akiyama,  Counsellor  at  Law,  15  Uneme  Cho, 
Kyobashi  Ku,  Tokyo. 

A  protest  has  been  filed  by  G.  Akiyama,  advocate  of  the  petitioner, 
John  Rojine,  against  the  decision  given  by  the  Yokosuka  Prize  Court, 


CHAP.  IV.]  CONTRABAND  GOODS.  701 

on  the  1st  of  the  6th  month  of  the  38th  year  of  Meiji,  in  the  case  of 
the  United  States  steamship  Tacoma,  condemning  the  said  ship,  which 
was  captured  by  the  Japanese  man-of-war  Takachiho,  on  the  14th  of 
the  3rd  month  of  the  38th  year  of  Meiji,  at  about  40  miles  southwest 
of  Cape  Shibetonitara,  of  Shikotan  Island,  and  trial  has  been  held  before 
this  Court,  the  Public  Procurators,  K.  Tsuzuki  and  B.  Ishiwatari, 
taking  part. 

The  substance  of  the  protest  preferred  by  G.  Akiyama,  the  peti- 
tioner's advocate,  is  that  the  decision  made  by  the  Yokosuka  Prize 
Court,  on  the  1st  of  the  6th  month  of  the  38th  year  of  Meiji,  condemn- 
ing the  steamship  Tacoma  should  be  repealed  and  a  new  decision  be 
given,  releasing  the  said  steamship.  As  the  grounds  of  his  protest,  he 
insists  that  in  undertaking  the  transportation  of  the  cargo  the  peti- 
tioner did  a  free  act  of  neutral  commerce;  that  in  carrying  out  this 
undertaking  he  never  used  any  deceitful  means,  nor  was  there  anything 
proving  that  he  was  guilty  of  an  act  to  assist  the  enemy;  that  in 
spite  of  this  the  original  court  considered  that  there  were,  on  the  part 
of  the  steamship,  acts  to  deceive  and  acts  to  assist  the  enemy,  and  de- 
clared the  forfeiture  of  the  ship  together  with  the  cargo;  and  that, 
therefore,  the  declaration  of  the  original  court  is  unlawful. 

The  substance  of  the  answer  of  K.  Yanagita,  Public  Procurator  of 
the  Yokosuka  Prize  Court,  is  that  the  petitioner  protests  that  the  de- 
cision condemning  the  steamship  is  unlawful,  as  there  was  no  act  of 
deceit  nor  any  act  to  assist  the  enemy  in  transporting  the  contraband 
of  war  to  Vladivostock ;  but  the  ship  made  a  false  statement  concerning 
the  port  of  its  destination.  The  greater  part  of  her  papers,  too,  are 
false  and  unlawful.  Moreover,  many  evidences  show  that  the  owner  of 
the  ship  joined  the  undertaking  to  supply  military  provisions  and  tried 
to  achieve  the  object,  to  the  enemy's  benefit.  Thus  the  shipowner  can- 
not be  absolved  from  the  responsibility. 

The  decision  of  this  Court  is  explained  as  follows: 

Of  the  cargo  on  board,  the  salt  beef  was  purchased  in  America  by 
the  Russian  merchant  Demby  through  the  Ebiky  Company,  of  Shanghai, 
to  the  order  of  Major-General  Dessino,  of  the  Russian  Army,  who  is 
residing  at  Shanghai  and  assisting  hostile  operations  of  the  enemy. 
This  is  evident  from  the  contracts  and  letter  of  authorisation  found  in 
possession  of  Alexander  Georgevitch  Boleman,  supercargo  of  the  steam- 
ship, and  from  the  testimony  given  by  the  same  Boleman.  That  the 
salt  beef  was  consigned  to  Vladivostock,  and  that  the  consignee  was 
the  Russo-Chinese  Bank,  is  also  very  clear  from  the  letter  given  by  the 
owner  of  the  ship  to  the  master,  under  date  of  January  2nd  of  this  year, 
and  from  testimony  of  the  master,  Knowlton,  and  the  above-men- 
tioned Boleman.     Now  Vladivostock  is  a  port  which  Russia  used  as  a 


702  NEW   CASES   ON  PRIZE   LAW.  [PART  V. 

base  of  operation  from  the  beginning  of  the  Russo-Japanese  War,  and 
is  an  important  commissariat  station.  The  consignee  of  the  goods,  too, 
is  the  Russo-Chinese  Bank,  which  has  an  intimate  connection  with  the 
enemy's  Government  in  its  Far  East  policy.  Thus  it  is  clear  that  the 
salt  beef  in  question  was  intended  for  military  use  at  the  place  where 
it  was  consigned,  and  consequently  it  is  contraband  of  war.  According 
to  International  Law,  a  ship  which  carries  a  cargo  of  contraband  of 
war,  knowing  it  to  be  such,  is  forfeitable,  together  with  the  cargo. 
Now  it  will  be  seen  from  the  testimony  of  Boleman  and  from  the  two 
above-mentioned  documents  found  in  his  possession,  that  the  said  Bole- 
man  was  intrusted  with  the  duties  of  examining  and  buying  salt  beef 
in  America,  which  was  freighted  in  the  ship  under  consideration,  and 
that  the  owner  of  the  ship  appointed  the  said  Boleman  supercargo  of 
the  ship,  knowing  all  the  circumstances.  So  that  the  owner  of  the  ship 
in  question  must  be  considered  as  having  knowingly  attempted  to  trans- 
port contraband  of  war  and  of  giving  benefit  to  the  enemy.  Moreover, 
that  the  owner  of  the  ship  under  consideration  tried  to  land  the  cargo 
at  Vladivostock,  a  base  of  the  enemy,  with  deceitful  means  by  hiding 
the  port  of  destination,  is  evident  from  the  fact  that  the  clearance  and 
health  certificates  were  obtained,  when  leaving  Seattle,  on  the  pretence 
that  the  ship  was  bound  for  Shanghai,  notwithstanding  the  fact  that 
he  gave  to  the  master  a  letter  designating  the  port  of  destination  as 
Vladivostock,  as  mentioned  before;  that  the  freight  bill  which  is  to  be 
signed  by  the  consignee  was  torn  off  at  the  part  where  the  place  of 
destination  was  mentioned;  and  that  not  only  a  false  entry,  as  bound 
for  Shanghai,  was  made  in  the  ship's  journal  and  its  duplicate,  deck 
journal,  and  engineer's  journal,  but  an  attempt  was  made  to  reach 
Vladivostock  via  Soya  Strait,  taking  the  route  considered  most  dan- 
gerous in  winter,  from  wind,  snow,  ice,  etc.,  notwithstanding  that  there 
is  a  more  convenient  route,  considering  the  season  of  the  voyage,  of 
going  to  the  destination  by  the  Strait  of  Tsugaru.  From  whatever 
point  of  view  we  consider  the  original  decision  condemning  the  ship,  it 
is  proper,  and  there  is  no  reason  for  protest. 

The  decision  of  this  Court  is  therefore  as  follows: 

This  protest  is  hereby  rejected. 

Given  this  8th  day  of  the  8th  month  of  the  38th  year  of  Meiji,  at 
the  Higher  Prize  Court. 

(Signed)  The  President  and  Councillors  op  the 
Higher  Prize  Court. 


CHAP.  IV.]  CONTRABAND  GOODS.  703 

Case   IX.     The  Vegga. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Sept.  25,  1905. 

Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  was  given  on  the  10th  of  the  6th  month  of 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court,  in  the  case  of  the 
Swedish  steamship  Vegga. 

Petition  No.  I. 

Decision. 
Petitioners — The    Vegga    Steamship    Co.,   Ltd.,    owners    of 

the  steamship  Vegga,  Sweden. 
Representative — Charles    Francis    Benson,    master    of    the 

steamship  Vegga,  Verberg,  Sweden. 
Attorneys — G.    Akiyama,    Counsellor    at    Law ;    T.    Nishi, 
Counsellor  at  Law,  75,  Yamashita  Cho,  Yokohama. 

In  the  case  of  the  Swedish  steamship  Vegga,  the  following  decision 
has  been  given: 

Text  of  Decision. 
The  steamship  Vegga  is  hereby  confiscated. 

Facts  and  Grounds  of  Decision. 

The  steamship  Vegga  of  this  case  is  the  property  of  the  Vegga 
Steamship  Company,  Ltd.,  the  petitioners,  and  is  a  merchantman  fly- 
ing the  Swedish  flag,  employed  for  the  transportation  of  goods.  Ac- 
cording to  the  order  received  from  the  owners'  agents,  Jacob  Hesler  & 
Co.,  of  West  Hartlepool,  England,  the  ship  took  on  board  at  Barry, 
England,  3615  tons  of  smokeless  Cardiff  coal  received  from  Watts, 
Watts  &  Co.,  also  agents  of  the  owners,  with  the  object  of  trans- 
porting the  same  to  Vladivostock,  Russia,  and  left  port  on  the  10th 
of  the  12th  month  of  the  37th  year  of  Meiji,  pretending  that  she 
was  bound  for  the  port  of  Seban(?),  Plonay  Island  (?).  She  was 
not  furnished  with  a  bill  of  lading,  and  as  she  went  on  she  succes- 
sively changed  her  destination  from  one  port  to  another — first  Seban, 
next  Labuan,  and  then  Hongkong.  At  the  last-mentioned  port  she 
obtained  a  clearance  as  bound  for  Shanghai.  On  departure  from 
Hongkong  she  entered  in  her  log  and  engineer's  log  her  true  destina- 
tion, Vladivostock,  and  without  calling  at  Shanghai,  she  was  steering 
straight  for  that  port,  when,  on  the  3rd  of  the  3rd  month  of  the  38th 
year  of  Meiji,  she  was  captured  by  the  Japanese  man-of-war  Nikko 
Maru,  in  N.  lat.  34°  10'  and  E.  long.  127°  43',  as  a  contraband  carrier. 

The  above  facts  are  clear  from  the  statement  submitted  by  Sub- 
Lieutenant   H.   Hisada,    representative   of   the   captain   of    the   Nikko 


704  NEW  CASES   ON   PRIZE   LAW.  [PART  V. 

Maru;  from  the  testimony  given  by  Charles  Francis  Benson,  master; 
Christian  Nordstrom  ( ?),  1st  mate;  Karl  Larson  (?),  2nd  mate,  and 
Berndt  Frederikson  ( ?),  chief  engineer,  all  of  the  steamship  Vegga; 
and  from  the  certificate  of  the  ship's  nationality,  the  log-book,  the 
clearances,  the  bills  of  health,  the  tonnage  certificates,  the  receipts 
for  lighthouse  dues,  etc. 

The  purport  of  the  plea  of  the  petitioners'  advocates  is  as  follows: 
The  steamship  under  consideration  is  a  neutral  ship,  and  the  coal 
on  board,  which  was  shipped  by  Furness  Withy  &  Co.,  Ltd.,  of  West 
Hartlepool,  England,  is  the  property  of  Harris  Dickson  &  Co.,  Ltd., 
of  London,  England.  The  ship  and  the  cargo  are  thus  owned  by  dif- 
ferent persons.  Moreover,  the  ship's  destination  to  Vladivostock  was 
clearly  entered  in  her  log-book,  and  if  there  are  false  statements  of 
her  destination  in  other  papers,  such  statements  cannot  be  considered 
as  tricks  contrived  to  evade  capture  by  a  Japanese  man-of-war.  The 
ship  is  not,  therefore,  liable  to  confiscation,  even  if  it  be  assumed 
that  her  cargo  was  contraband;  and  for  a  stronger  reason,  she  should 
not  be  confiscated,  as  the  coal  was  not  contraband,  but  ordinary  goods 
destined  to  Vladivostock,  the  commercial  port.  For  the  above  reasons, 
the  ship  under  consideration  should  be  released. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  as  follows; 
That  the  coal  on  board  this  ship  was  contraband  admits  of  no 
doubt.  Moreover,  there  is  reason  to  assume  the  owners  of  the  ship 
to  be  also  the  owners  of  the  cargo,  and  the  cargo  was  shipped  by 
fraudulent  means.  The  ship  should,  therefore,  be  confiscated. 
After  due  consideration  the  Court  concludes  as  follows: 
It  is  recognised  both  in  the  rules  and  the  usage  of  International 
Law  that  a  vessel  is  liable  to  confiscation  when  she  engages  in  the 
transportation  of  contraband  goods,  using  fraudulent  means,  or  when 
her  owner  is  also  the  owner  of  tlie  contraband  cargo.  The  coal  on 
board  this  ship  being  smokeless  Cardiff  coal,  chiefly  used  by  naval 
vessels  and  being  consigned  to  Vladivostock,  the  only  Russian  naval 
base  in  the  Orient,  it  is  contraband  of  war  intended  for  the  enemy's 
military  use.  Moreover,  the  master  stated  that  he  was  instructed 
at  West  Hartlepool  by  Jacob  Hesler  &  Co.  to  see  one  Ginsburg,  on 
arrival  at  his  destination  and  to  dispose  of  the  coal,  and  that  he 
learned  at  Hongkong  that  Ginsburg  was  at  Vladivostock.  From  this 
it  will  appear  that  the  destination  of  the  coal  to  Vladivostock  was 
already  decided  when  it  was  shipped.  Notwithstanding  this,  the  ship, 
after  leaving  Barry,  always  named  a  way  port  as  her  destination. 
Especially  at  Hongkong  she  obtained  clearance,'  pretending  to  be 
bound  for  Shanghai,  where  she  had  no  intention  of  calling,  and  sailed 
directly  towards  Vladivostock.    These  acts  were  done  for  the  purpose 


CHAP.  IV.]  CONTRABAND  GOODS.  705 

of  evading  capture  by  a  Japanese  man-of-war,  and  consequently,  it  is 
evident  that  the  ship  transported  contraband  of  war  by  fraudulent 
means.  After  leaving  Hongkong,  the  ship's  destination  to  Vladivos- 
tock  was  for  the  first  time  entered  in  the  log  and  the  engineer's  log, 
but  this  single  act  is  not  sufficient  to  absolve  her  from  the  responsi- 
bility of  the  transportation  of  contraband  goods  by  fraudulent  means. 
Furthermore,  the  coal  was  shipped  by  a  firm,  agents  of  the  owners, 
by  the  order  of  another  firm,  also  agents  of  the  owners,  so  that  it 
may  be  inferred  that  it  was  the  property  of  the  owners  themselves. 
Nor  is  there  anything  in  the  statements  of  members  of  the  crew  or 
in  the  documents  found  on  board  to  show  that  there  was  a  different 
owner  for  the  cargo.  The  petitioners'  advocates,  by  producing  a  power 
of  attorney  given  by  Harris  Dickson  &  Co.  and  an  alleged  copy  of 
the  bill  of  lading,  contends  that  there  was  a  different  owner  for  the 
cargo.  But  the  power  of  attorney  is  nothing  more  than  a  statement 
of  the  firm  of  Harris  Dickson  &  Co.  that  they  were  the  owners  of  the 
cargo,  and  prove  nothing.  The  alleged  copy  of  the  bill  of  lading  was 
not  found  on  board;  nor  does  it  contain  the  signatures  of  the  parties 
concerned  in  their  own  handwriting.  These  documents  cannot,  there- 
fore, be  admitted,  and  it  is  proper  to  assume  that  the  ship  is  owned 
by  the  same  person  who  owned  the  contraband  cargo.  For  the  above 
reasons  the  ship  should  be  lawfully  confiscated,  and  the  decision,  as 
stated  in  the  text,  has  been  given. 

Given  this  10th  day  of  the  6th  month  of  the  38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  C.  Minakami,  taking 
part. 

(Signed)     The  President  and  Councillors  of  the 
Sasero  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 
Published  in  the  Official  Gazette,  Tokyo,  on  Sept.  26,  1905. 

The  following  decision  was  given  on  the  5th  of  the  9th  month  of 
the  38th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  appeal  case 
of  the  Swedish  steamship  Vegga. 

Decision. 
Case  No.  LXXVII. 

Petitioners — The  Vegga  Steamship   Co.,  Ltd.,  Linham(?), 

Sweden. 
Representative — Charles    Francis    Benson,    master    of    the 

steamship  Vegga,  Varverg,  Sweden. 
Attorneys — G.    Akiyama,    Counsellor    at    Law;    T.    Nishi, 
Counsellor  at  Law,  75,  Yamashita  Cho,  Yokohama. 


706  NEW  CASES  ON  PRIZE   LAW.  [PART  V. 

In  the  case  of  the  Swedish  steamship  Vegga,  captured  by  the  Japa- 
nese man-of-war  Nikko  Mam,  on  the  3rd  of  the  3rd  month  of  the 
38th  year  of  Meiji,  in  N.  lat.  34°  10'  and  E.  long.  127°  43',  the  Sasebo 
Prize  Court  gave  decision  on  the  10th  of  the  6th  month  of  the  same 
year,  confiscating  the  said  ship.  Whereas,  G.  Akiyama  and  T.  Nishi, 
attorneys  for  Charles  Francis  Benson,  the  representative  of  the  peti- 
tioners, the  Vegga  Steamship  Company,  Ltd.,  have  filed  an  appeal 
against  the  said  decision,  the  case  has  been  examined,  and  the  follow- 
ing judgment  is  given,  K.  Tsuzuki  and  B.  Ishiwatari,  Public  Proc- 
urators of  the  Higher  Prize  Court,  taking  part. 

The  main  points  of  the  appeal  stated  by  G.  Akiyama  and  T.  Nishi, 
attorneys  for  the  petitioners,  are: 

The  decision  given  by  the  Sasebo  Prize  Court  on  the  10th  of  the 
6th  month  of  the  38th  year  of  Meiji  confiscating  the  steamship  Vegga 
is  unreasonable,  so  it  should  be  cancelled  and  judgment  releasing  her 
should  be  given  for  the  following  reasons: 

(1)  This  ship  belongs  to  different  owners  from  those  of  her  cargo, 
and  no  fraud  was  committed  by  her.  Therefore,  the  ruling  of  the 
original  court  that  this  ship  and  her  cargo  belong  to  the  same  owner 
and  that  she  took  the  cargo  on  board  and  transported  it  by  fraudulent 
means  is  unreasonable. 

(2)  The  original  Court  maintained  that  this  cargo,  being  Cardiff 
coal  chiefly  used  by  navies  and  being  consigned  to  Vladivostock,  the 
only  Russian  Naval  base  in  the  Orient,  it  was  contraband  of  war  in- 
tended for  the  enemy's  military  use.  But  Vladivostock  is  not  only 
the  Russian  port  but  is  also  her  only  commercial  .port  in  the  Orient, 
and  it  is  the  trading  place  where  commercial  and  industrial  business 
is  undertaken  by  different  nations.  Hence,  it  is  improper  to  deem  coal 
consigned  there  as  war  material,  simply  because  the  place  is  a  naval 
port.  It  is  a  conspicuous  fact  that  Cardiff  coal  is  used  not  only  by 
navies,  but  also  widely  used  for  commercial,  industrial  and  other  pur- 
poses. Hence,  when  goods  useful  both  in  war  and  peace  are  transported 
to  a  place  like  Vladivostock  which  has  a  dual  character,  i.  e.,  naval 
and  commercial,  it  would  agree  with  the  rules  and  usages  on  Inter- 
national Law  to  hold,  following  the  precedent  of  the  Neptunus  case, 
that  the  goods  were  transported  to  Vladivostock,  the  commercial  port, 
and  intended  for  peaceful  purposes. 

(3)  The  former  decision  held  that  since  leaving  Barry,  this  ship 
always  named  a  way  port  for  her  destination  and  at  Hongkong  she 
obtained  clearance  pretending  to  be  destined  for  Shanghai,  where  she 
had  no  intention  of  calling  and  sailed  towards  Vladivostock,  and  that 
as  these  acts  were  taken  for  the  purpose  of  evading  capture  by  Japa- 
nese men-of-war,  it  is  evident  that  she  transported  contraband  of  war 


CHAP.  IV.]  CONTRABAND  GOODS.  707 

by  fraudulent  means.  But  the  reason  this  ship  named  a  way  port  for 
destination  after  leaving  Barry  was  in  order  to  conceal  from  the  crew 
her  real  destination,  since  they  might  object  to  going  to  Vladivostock. 
When  the  destination  of  Vladivostock  was  disclosed  to  the  crew  at 
Labuan,  some  of  them  insisted  on  leaving  the  ship,  so  she  was  obliged 
to  discharge  them  and  engage  new  men  at  Hongkong.  The  reason  the 
clearance  for  Shanghai  was  obtained  at  Hongkong  was  because  she  was 
informed  by  her  agents  that  clearance  for  Vladivostock  could  not  be 
obtained,  and  so  the  name  of  Shanghai  was  given  to  the  authorities. 
That  the  above  acts  were  not  done  with  evil  intention  of  evading  cap- 
ture by  Japanese  man-of-war  is  clearly  proved  by  the  statement, 
"  bound  for  Vladivostock,"  in  the  ship's  log-book  and  the  engineer's 
log-book.  If  she  had  really  intended  to  avoid  capture,  she  would 
have  made  a  false  statement  in  the  said  books  also;  for  the  false 
statement  in  her  bill  of  clearance  alone  would  not  be  sufficient  to  ac- 
complish the  fraud,  when  the  other  papers  contained  the  true  state- 
ment. Hence,  these  acts  cannot  be  regarded  as  fraud,  in  the  meaning 
of  International  Law. 

(4)  The  original  Court  adjudged  the  cargo  of  this  ship  to  be  the 
property  of  her  owner  on  the  ground  that  it  was  loaded  by  the  order 
of  his  agents.  But  the  prize  officer's  report  as  to  the  circumstances 
at  the  time  of  capture  contains  the  following  remarks :  "  The  master's 
wife  said,  nobody  having  asked  her,  that  this  coal  belongs  to  the  same 
owner  as  the  coal  loaded  in  the  Sylviana;  subsequently  I  asked  the 
master  about  the  above  fact.  He  denied  it  at  first,  but  finally  ad- 
mitted it  as  true,"  and,  "  the  bill  of  lading  was  not  found  among  the 
ship's  papers;  I  thought  the  master  might  have  concealed  the  docu- 
ment, so  I  asked  him  several  times  about  it;  finally  he  stated  that 
he  received  verbal  instructions  to  give  notice  to  one  M.  Ginsburg,  on 
his  arrival  at  Vladivostock."  When  the  above  remarks  are  considered 
it  may  be  presumed  that  this  cargo  does  not  belong  to  the  owner  of 
the  ship  but  to  some  other  party.  As  to  the  relation  between  M. 
Ginsburg  and  Harris  Dickson  &  Co.,  with  regard  to  this  coal,  there 
is  no  necessity  of  giving  particulars  here,  but  seeing  that  the  said 
company  claimed  its  ownership  and  gave  us,  the  attorneys  for  this 
petition,  a  power  of  attorney  for  filing  a  petition  relating  to  the  cargo, 
it  is  presumable  that  this  cargo  is  not  the  property  of  the  owner  of 
the  ship,  but  belongs  to  some  other  owner.  That  the  loading  of  this 
ship  was  done  by  order  of  the  owner's  agents  was  quite  an  ordinary 
matter,  for  a  shipping  company  like  the  petitioners  may  give  orders 
to  the  master,  themselves  or  through  their  agents,  to  take  others'  goods 
on  board.  Hence,  it  is  unreasonable  to  presume  that  this  cargo  be- 
longs to  the  owner  of  the  ship.     In  short,  this  ship  did  not  transport 


708  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

coal,  contraband  of  war,  by  fraudulent  moans,  and  the  cargo  is  not 
the  property  of  her  owner  and,  therefore,  she  is  not  liable  to  confisca- 
tion. Even  granting  that  the  cargo  is  contraband,  since  her  owner 
did  not  collude  in  its  transportation  and  was  ignorant  of  the  circum- 
stances, the  ship  should  not  be  subjected  to  the  same  fate  with  the 
cargo. 

The  main  points  of  the  response  of  C.  Minakami  and  S.  Yamamoto, 
Public  Procurators  of  the  Sasebo  Prize  Court,  are: 

( 1 )  Considering  the  purport  of  the  statement  made  by  the  master 
when  he  was  examined  by  the  Councillor  in  charge  of  this  case,  and 
the  fact  that  no  bill  of  lading  was  found  in  the  ship,  nor  anything 
to  prove  that  this  coal  belongs  to  some  other  party,  it  must  be  in- 
ferred that  it  is  the  property  of  the  owner's  agents,  Jacob  Hesler  & 
Co.,  that  is,  that  it  is  owned  by  the  same  owners  as  the  ship.  The 
appellant  produced,  at  the  time  of  the  formal  proceedings  in  this  case, 
a  power  of  attorney  and  a  copy  of  the  bill  of  lading.  But  such  docu- 
ments may  be  made  at  any  time  between  the  parties  interested,  so 
it  was  quite  reasonable  on  the  part  of  the  original  Court  to  reject  them 
and  judge  by  the  master's  statement  that  this  ship  and  her  cargo  be- 
longed to  the  same  owner. 

(2)  Although  the  original  Court  assumed  that  this  ship  trans- 
ported contraband  of  war  by  fraudulent  means,  it  did  not  hold  that 
the  loading  was  done  by  fraud.  It  appears  from  the  order  given  to 
the  master  by  Jacob  Hesler  &  Co.,  to  dispose  of  the  coal  after  seeing 
Ginsburg  at  its  destination,  that  Vladivostock  was  fixed  from  the  first 
for  the  destination  of  coal.  Nevertheless,  after  her  departure  from 
Barry,  this  ship  intentionally  named  a  way  port  for  her  destination 
and  at  Hongkong  she  obtained  a  clearance  for  Shanghai,  where  she 
had  no  .  intention  of  calling,  but  in  reality  she  shaped  her  course 
directly  for  Vladivostock.  These  facts  cannot  be  regarded  as  meaning- 
less acts  but  must  be  held  as  the  customary  steps  for  evading  capture 
by  Japanese  men-of-war. 

For  the  aforesaid  reasons,  the  rulings  of  the  original  Court  -are 
reasonable  and  the  appeal  is  entirely  groundless  and  should  be  dis- 
missed. 

The  reasons  of  decision  by  the  Higher  Court  are  given,  as  follows: 
( 1 )  Vladivostock  being  an  important  Russian  naval  port,  it  is 
a  conspicuous  fact  that  the  Russian  Government  has  made  it  the  base 
of  her  squadron,  since  the  outbreak  of  the  Russo-Japanese  War,  and 
a  depot  where  arms,  provisions,  coal  and  other  war  materials  have 
been  abundantly  accumulated,  and  that  ordinary  trade  is  almost  en- 
tirely suspended  there.  So  it  is  not  unreasonable  that  the  original 
Court  regarded  this  coal,  consigned  to  Vladivostock,  as  contraband  of 


CHAP.  IV.]  CONTRABAND  GOODS.  709 

war  intended  for  the  Russian  forces.  Moreover,  being  Cardiff  coal  of 
best  selection,  which  is  of  high  cost  in  the  Orient  and  rarely  demanded 
except  by  navies  in  war  time,  it  is  beyond  any  doubt  that  this  coal 
was  intended  for  the  Russian  Navy.  The  appellant  argues  that  the 
precedent  of  the  "Septunus  case  should  be  followed  and  the  cargo  be 
regarded  as  intended  for  peaceful  purposes.  But  the  nature  of  the 
cargo  and  the  circumstances  of  its  destination  are  entirely  different 
from  those  in  the  Neptunus  case,  so  it  is  needless  to  say  that  that 
case  cannot  be  followed  as  a  precedent. 

(2)  When,  as  in  this  case,  the  object  of  a  ship's  voyage  is  the 
transportation  of  contraband  of  war,  according  to  International  Law, 
the  ship  may  be  confiscated  and  this  Higher  Prize  Court  deems  that 
penalty  lawful.  Besides,  the  whole  cargo  of  this  ship  is  contraband  of 
war,  and  although  it  was  well  known  from  the  time  of  her  departure 
from  Barry  that  she  was  bound  for  Vladivostock,  the  false  destination 
of  Seban  (  ?)  was  mentioned  at  first.  Later  she  changed  her  destina- 
tion very  often,  but  she  always  gave  the  name  of  a  neutral  port.  At 
Hongkong,  she  obtained  a  clearance  under  the  pretence  of  going  to 
Shanghai  where  she  had  no  intention  of  calling,  and  shaped  her  course 
directly  to  Vladivostock.  The  above  shows  that  she  attempted  to 
transport  Cardiff  coal,  contraband  of  war,  to  Vladivostock  and  her 
intention  was  to  evade  capture  by  false  papers  should  she  encounter 
Japanese  men-of-war;  that  is  to  say,  she  resorted  to  fraudulent  means 
in  order  to  accomplish  the  transportation  of  contraband  goods. 

For  the  reasons  given  above  (1st  and  2nd),  the  decision  of  the 
original  Court  to  confiscate  the  ship  is  quite  reasonable,  and  as  to  the 
other  points  contended  by  the  appellant,  there  is  no  need  of  giving 
any  explanation. 

Decision  is  given  as  follows: 

This  appeal   is  hereby  dismissed. 

Given  this  5th  of  the  9th  month  of  the  38th  year  of  Meiji,  at  the 
Durt. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 


CHAPTER   V. 
BLOCKADE. 

Case  I.     The  George. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Feb.  25,  1905. 

Decision  of  the  Sasebo  Prize  Court. 

The  following  decision  was  given  on  the  21st  of  the  10th  month 
of  the  37th  year  of  Meiji,  by  the  Sasebo  Prize  Court,  in  the  case  of 
the   French  steamer   George. 

Decision. 
Petition  No.  1. 

Petitioner — August  Vernon,  French  citizen,  Tangku,  China. 
Advocate — J.  Saito,  Counsellor  at  Law,  14,  2-chome,  Ata- 
go  Machi,  Shiba  Ku,  Tokyo. 

In  the  case  of  the  French  steamer  George,  the  following  decision 
has  been  given: 

Text  of  the  Decision. 

The  steamer  George  is  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamer  George,  now  under  consideration,  is  the  property  of 
the  French  citizen,  August  Vernon.  The  vessel  flies  the  French  flag 
and  is  employed  for  the  transportation  of  freight  and  passengers  in 
the  seas  of  northern  China,  with  Tangku  as  her  usual  home  port. 
Sloss  ( ? ) ,  the  master  of  the  ship,  knowing  that  Port  Arthur  was 
being  blockaded  by  the  Japanese  fleet,  took  in  provisions  and  liquors 
with  the  object  of  transporting  them  to  that  port,  and  left  Tangku 
on  the  16th  of  the  8th  month  of  the  37th  year  of  Meiji  under  the 
pretence  of  going  to  Wei-hai-wei.  On  the  18th  of  the  same  month  the 
steamer  arrived  outside  Port  Arthur,  cast  anchor  100  or  120  metres 
off  shore,  beneath  a  certain  fort,  and  transshipped  the  whole  of  her 
cargo  to  a  Russian  steamer  on  the  same  day  and  the  next  (19th). 
She  then  took  on  board  a  Turk  who  came   from  Port  Arthur,   and 

710 


CHAP.  V.]  BLOCKADE.  711 

left  the  place.  On  her  way  to  Tangku  on  the  night  of  the  19th,  the 
same  month,  she  was  captured  about  5  miles  southeast  of  Laotieh 
Shan  Promontory  by  the  Japanese  torpedo  boat  No.  65  on  blockading 
duty  there.     At  that  time  the  steamer  had  no  cargo. 

The  above  facts  are  clear  from  the  statement  and  certificate  as  to 
money  and  valuables  found  on  board  the  prize  submitted  by  Lieu- 
tenant S.  Fujimura,  I.  J.  N.,  representative  of  the  commanding  officer 
of  the  torpedo  boat  No.  65;  from  the  testimony  given  by  Charles  Gus- 
tave  Sloss,  the  master  of  the  steamer  George,  the  mate  Ma  Liang, 
the  boatswain  Ku  Yu  Chi,  the  chief  engineer  Wang  Fu  Lin,  and  the 
passenger  Nicola  Vanwakides  (  ?)  ;  and  from  the  certificate  of  regis- 
tration of  the  Tientsin  Custom  House,  the  certificate  of  nationality, 
etc. 

The  purport  of  the  advocate's  plea  is  as  follows: 
The  steamer  George  is  the  property  of  a  neutral  person.  She  was 
not  chartered  by  the  enemy  as  transport,  nor  was  she  making  a  voyage 
under  his  licence,  nor  under  the  protection  of  his  men-of-war.  She  was 
not,  moreover,  actually  carrying  any  contraband  of  war  to  the  enemy, 
nor  was  she  guilty  of  any  hostile  action  against  the  Japanese  Empire. 
Furthermore,  the  blockade  cannot  be  considered  effective,  as  she  was 
able  to  arrive  at  a  certain  place  outside  Port  Arthur;  and  besides  she 
was  on  her  return  voyage,  after  effecting  entrance  into  the  port,  and 
not  about  to  break  through  the  blockade.  She  cannot,  therefore,  be 
considered  guilty  of  blockade  running.  For  the  above  reason,  the  ad- 
vocate requests  her  release. 

The  gist  of  the  opinion  of  {he  Public  Procurator  is  as  follows: 
The  steamer   under   consideration  is  guilty  of  blockade  running  as 
it   was    a    conspicuous    fact    that    the    blockade    was    actually    and    ef- 
fectively   maintained   at   that   time.      He,   therefore,    requests    that   the 
vessel  be  condemned. 

After  due  consideration  the  Court  concludes  as  follows: 
The  advocate  says  that  the  blockade  outside  Port  Arthur  was  not 
effective  at  the  time  of  the  capture  of  the  steamer  under  consideration 
and,  consequently,  she  cannot  be  said  to  be  guilty  of  blockade  run- 
ning. But  there  is  no  doubt  as  to  the  fact  that  the  blockade  of  the 
southern  coasts  of  Liaotung  Peninsula  was  effectively  enforced,  not 
only  at  the  time  of  the  capture  of  the  vessel,  but  ever  since  the  declara- 
tion of  blockade  was  made  by  the  Commander-in-Chief  of  the  Japanese 
Combined  Fleet  on  the  26th  of  the  5th  month  of  the  37th  year  of 
Meiji ;  and  the  steamer  under  consideration,  which  had  made  the  above 
mentioned  voyage  to  a  certain  place  outside  Port  Arthur  without  any 
proper  cause,  had  clearly  violated  the  blockade.  And  as  it  is  a  recog- 
nised   rule    of    International    Law   that    a    vessel    which    is    guilty    of 


712  NEW   CASES   OX   PRIZE   LAW.  [PART  V. 

blockade  running  shall  be  liable  to  confiscation  vithout  ascertaining 
any  other  facts,  there  is  no  need  of  examining  the  advocate's  other 
arguments.      The   decision   as    stated    in   text    is,    therefore,    given. 

Given  this  21st  day  of  the  10th  month  of  the  37th  year  of  Meiji 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  C.  Minakami,  being 
present. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected  for 
the  same  reasons  held  by  the  Sasebo  Prize  Court. 

Case  II.    The  Fuping. 
Decision  published  in  the  Official   Gazette,  Tokyo,  of  Dec.   12,   1904. 

Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  has  been  given  by  the  Sasebo  Prize  Court 
on  the  German  steamship  Fuping  and  her  cargo. 

Decision. 
In  the  case  of  the  capture  of  the  German  steamship  Fuping  and 
her   cargo,    the    opinion    of    the    Public    Procurator,    C.    Minakami    and 
S.   Yamamoto,   has   been   examined   and   the   following  decision    given: 

Text   of  the   Decision. 
The  steamship  Fuping  and  the  goods  on  board  of  her,  as  mentioned 
in  the  annexed  list,  are  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 
The  steamship  Fuping  now  under  consideration  is  the  property  of 
the  German  company  Telge  &  Schroeder  at  Tientsin,  China,  and  is 
a  merchantman  flying  the  German  flag  and  employed  for  the  trans- 
portation of  passengers  and  freight.  The  master  of  the  ship,  Frank 
Gray,  knowing  that  Port  Arthur,  China,  was  blockaded  by  the  Im- 
perial navy,  loaded  the  ship  with  arms,  ammunition,  and  provisions, 
consigned  by  the  owner,  by  deceitful  means,  to  Port  Arthur;  took  on 
board  also  a  Russian  army  officer  in  active  service,  Captain  Eashily 
Yulievitch  Eggart  (?) ;  and  left  Tangku  on  the  8th  of  the  10th  month 
of  the  37th  year  of  Meiji,  ostensibly  for  Chefoo,  China,  but  really 
with  the  purpose  of  reaching  Port  Arthur.  On  the  11th  of  same  month, 
the  ship  transshipped  at  sea  5  miles  south  of  Rocky  Point,  China, 
from  two  junks,  certain  Russia-made  boots  and  provisions,  also  con- 
signed by  the  owner  of  the  ship  to*  Port  Arthur.     The  ship,  now  fully 


CHAP.  V.]  BLOCKADE.  713 

laden  with  the  cargo  as  mentioned  in  the  annexed  list,  left  the  place 
at  about  2  p.m.  the  same  day.  The  next  day,  the  12th,  at  about 
9  a.m.,  while  she  was  proceeding  to  Port  Arthur,  she  was  captured 
in  N.  Long.  120°  55'  and  E.  Lat.  38°  34',  about  10  miles  north  of  North 
Huangheng  Island,  by  the  Imperial  torpedo  boat  Shirataka,  on  block- 
ading duty  there. 

The  above  facts  are  clear  from  the  statement  of  the  boarding 
officer,  Lieutenant  M.  Kawazoe;  the  certificate  concerning  transship- 
ment of  the  crew;  the  testimony  given  by  Frank  Gray,  the  master; 
James  Dakian  (?),  the  1st  mate;  Alexander  Robertson,  the  chief 
engineer,  and  Washily  Yulievitch  Eggart,  Captain  in  the  Russian 
Army,  passenger;  and  the  log-book,  certificate  of  nationality,  diary 
of  the  master,  clearance,  and  certificate  of  Colonel  Ogorodonikoff  of 
the  Russian  Army. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that,  as  it 
was  a  conspicuous  fact  that  the  blockade  of  Port  Arthur  was  actually 
maintained  at  the  time  of  the  capture,  the  ship  under  consideration, 
which  was  steering  for  the  blockaded  area,  must  be  considered  as  vio- 
lating the  blockade.  Consequently  the  ship  and  cargo  ought  to  be 
confiscated. 

After  due  consideration,  the  Court  concludes  that  it  is  a  general 
principle  recognised  in  International  Law  that  in  case  a  blockade  is 
actually  maintained,  a  vessel  lying  near  and  proceeding  for,  the 
blockaded  area,  will  be  considered  as  violating  the  blockade,  and  is 
confiscable,  together  with  her  cargo,  except  that  part  of  it  which 
belongs  to  those  who  are  innocent  of  such  attempt.  The  fact  cannot 
be  questioned  that  the  blockade  of  the  coasts  of  the  southern  part 
of  Liaotung  Peninsula,  proclaimed  by  the  Commander  in  Chief  of  the 
Imperial  Combined  Fleet,  on  the  26th  of  the  5th  month  of  the  37th 
year  of  Meiji,  had  always  been  maintained  effectively;  so  that  it  is 
very  clear  that  the  ship  under  consideration,  which  was,  as  stated 
above,  proceeding  to  Port  Arthur,  should  be  considered  as  having 
violated  the  blockade. 

Concerning  the  cargo,  not  only  must  it  be  considered  as  belonging 
to  the  owner  of  the  ship,  but  as  there  is  no  doubt  of  its  destination 
to  Port  Arthur  from  the  certificate  of  Colonel  Ogorodonikoff,  com- 
manding the  Russian  force  in  Peking,  which  the  owner  of  the  cargo 
gave  to  the  master  of  the  ship,  the  owner  cannot  be  said  to  be  inno- 
cent of  the  attempt  to  run  the  blockade.  Therefore,  the  ship  under 
consideration  and  the  goods  on  board  of  her,  as  mentioned  in  the 
annexed  list,  ought  to  be  confiscated.  As  no  petition  has  been  filed 
in  this  case  within  the  period  advertised  for  by  this  Court,  the  de- 
cision as  stated  in  the  text  has  been  given  by  request  of  the  Public 


714 


NEW   CASES   ON   PRIZE   LAW. 


[PART  V. 


Procurator,  according   to  the   last   clause   of  Art.   XVI.    of   the   Prize 
Court  Regulation,  without  going  through  the  procedure  of  a  trial. 

Given  this  6th  day  of  the  12th  month  of  the  37th  year  of  Meiji, 
at  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


LIST   OF   GOODS. 


Goods. 


Number  of  Packages. 


Boiled  beef 

Corned  beef 

Maize 

Macaroni 

Sausage 

Salted  beef 

Medicals 

Boots 

Butter 

Soap . 

Smoked  ham 

Tinned  soup 

Tinned  vegetables . . . 

Sulphuric  acid 

Tea 

Boxes  of  arms 

Boxes  of  ammunition 


1,026 

1,085 

1,043 

720 

25 

11 

35 

98 

18 

61 

34 

5 

88 

38 

1 

8 

1,091 


Case  III.     The  Veteran. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  July  19,  1905. 
Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  was  given  on  the  1st  of  the  3rd  month  of 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court,  in  the  case  of  the 
German  S.  S.  Veteran. 
Petition  No.  I. 

Decision. 
Petitioner — Edward    Eichwede,    German    subject,    residing 

Chefoo,  China. 
Attorney — T.    Ishibashi,    Counsellor    at    Law,    41    Togiya 
Machi,  Nagasaki. 

In  the  case  of  the  capture  of  the  German  S.  S.  Veteran  decision 
is  given  as  follows: 

Text   of  the   Decision. 
S.  S.  Veteran  is  hereby  confiscated. 


CHAP.  V.]  BLOCKADE.  715 


Facts  and  Grounds  of  the  Decision. 

The  S.  S.  Veteran  of  this  case,  being  the  property  of  Edward  Eich- 
wede,  German  subject,  residing  at  Chefoo,  China,  engaged  chiefly  in 
the  transportation  of  goods  under  the  German  flag  was  chartered  at 
Tsingtau,  China,  on  the  6th  of  November,  1904,  by  a  German  firm, 
Diederichsen,  Jebsen  &  Co.,  of  that  place,  and  departed  from  Tsingtau 
at  midnight  of  the  17th  of  the  11th  month  in  the  37th  year  of  Meiji, 
taking  on  board  a  full  cargo  of  furs,  to  keep  out  cold,  long  boots, 
soap,  tobacco,  matches,  medicines,  provisions,  etc.,  consigned  to  Port 
Arthur  by  the  said  firm,  with  the  real  intention  of  proceeding  to  Port 
Arthur,  but  pretending  to  the  Chinese  crew  that  she  was  bound  for 
Chefoo,  and  without  having  perfect  ship's  papers.  After  she  left 
Tsingtau,  the  master  caused  the  ship's  bell  to  be  taken  down,  and  its 
striking  was  then  discontinued,  to  enable  the  steamer  to  accomplish 
her  secret  navigation;  and  when  she  came  off  Wei-hai-wei  on  the 
following  night,  the  18th,  the  course  was  suddenly  changed  to  north- 
east. The  boatswain,  Wantejui,  and  others  of  the  Chinese  crew  be- 
gan to  suspect  that  she  was  going  to  Port  Arthur,  and  demanded 
of  the  master  the  reason  of  the  change  of  course.  The  master,  how- 
ever, instead  of  giving  them  any  answer,  instantly  assaulted  and 
wounded  them,  and,  threatening  them  with  his  pistol,  still  kept  on 
the  changed  course.  While  the  ship  was  proceeding  northwest  &  west, 
i.e.,  in  the  direction  of  Port  Arthur,  she  was  captured  in  N.  Lat.  38° 
6'  30",  E.  Long.  122°  40'  30",  at  about  4  o'clock  a.m.  on  the  19th  day, 
by  the  Japanese  man-of-war  Tatsuta,  which  was  on  blockade  duty. 

The  aforesaid  facts  are  proved  by  the  written  statement  of  Lieu- 
tenant S.  Ohara,  acting  prize  officer;  affidavits  of  Carl  Edlar  (?),  mas- 
ter of  the  Veteran-,  Anton  Mueller,  first  mate;  Max  Hase,  chief  engi- 
neer; Phillip  Bluns,  second  mate;  Wangteijui,  boatswain;  Wangshihyu, 
Wangchishan,  quartermasters;  Kutelei,  head  fireman;  Haushing-ying, 
fireman;  certificate  of  ship's  nationality,  originals  of  ship's  log-book 
and  engineer's  log-book,  report  of  inspection  by  the  Councillor  in 
charge  of  the  case,  as  to  the  place  where  the  ship's  bell  was  taken 
down,  opinion,  given  in  writing,  by  K.  Hirano,  staff  engineer,  as  to 
the  damage  in  engine  room  and  guide  rod  of  the  S.  S.  Veteran,  and 
charter-party  produced  by  the  attorney  for  the  petitioner. 

The  chief  point  of  the  statement  made  by  the  attorney  for  the 
petitioner  is  that  this  steamer  should  be  released.  As  the  reason 
of  his  statement  he  maintains  that  the  object  of  the  S.  S.  Veteran, 
when  she  departed  from  Tsingtau  on  the  17th  day  of  the  11th  month 
in  the  37th  year  of  Meiji,  was  to  go  first  to  Newchwang,  next  to 
call  at   Tientsin,  and  finally  to  proceed  to  Chefoo,  the  place  of  resi- 


716  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

dence  of  the  petitioner.  This  fact  could  be  proved  by  the  charter 
party  between  the  petitioner,  who  is  the  owner  of  the  steamer,  and 
Diederichsen,  Jebsen  &  Co.,  the  bills  of  lading,  etc.  One  part  of  the 
cargo  was  to  be  consigned  to  Baudinel  &  Co.,  Newchwang,  one  part 
to  be  sent  to  Telge  &  Schroeter,  Tientsin,  and  another  part  to  the 
Newchwang  branch  office  of  Diederichsen,  Jebsen  &  Co.,  but  none 
was  consigned  to  Port  Arthur.  It  appears  that  the  steamer's  course 
was  a  little  too  far  to  seaward  and  too  much  northeasterly,  from 
the  Shantung  Promontory  to  Newchwang,  but  there  was  something 
wrong  with  her  engine  at  that  time,  and  her  speed  was  thereby 
reduced;  and,  moreover,  the  steamer  was  in  danger  of  being  blown 
ashore  by  the  northwest  wind,  so  her  course  was  purposely  shaped 
more  to  the  northward  and  eastward  than  the  usual  route  to  Newch- 
wang. She  did  not,  however,  proceed  toward  Port  Arthur.  The  Pub- 
lic Procurator's  statement  says  that  the  words,  "  To  Port  Arthur," 
which  were  written  on  the  cases  of  milk  and  soap,  part  of  her  cargo, 
are  proof  that  she  was  secretly  attempting  to  go  to  Port  Arthur, 
but  it  was  unreasonable  to  think  that  one  who  attempts  to  run  the 
blockade  would  write  such  signs  so  as  to  prove  his  own  offence,  so 
the  fact  that  there  was  the  above  writing  may  rather  be  taken  as 
a  proof  that  no  ill  intention  was  entertained  by  the  steamer.  The 
act  of  the  master  in  having  the  ship's  bell  taken  down  after  her 
departure  was  not  for  the  purpose  of  secret  navigation,  but  because 
the  bell  had  the  inscription  "  Thales,"  the  former  name  of  the  ship. 
It  was  taken  down  simply  with  a  superstitious  idea  of  wishing  her 
future  good  luck.  The  ship's  papers  in  which  Newchwang  was  desig- 
nated as  the  port  of  destination  were  complete  and  all  true,  and  there 
was  no  great  inconsistency  between  the  ship's  destination,  clearly 
shown  in  these  ship's  papers,  and  the  course  which  the  steamer  took. 
Moreover,  the  steamer  was  captured  about  60  or  70  miles  off  Port 
Arthur,  which  is  too  far  to  consider  her  as  having  attempted  to  pass 
the  blockaded  line  and  run  into  the  prohibited  zone.  For  the  above 
reasons,  the  capture  of  the  steamer  was  unreasonable,  and  even  sup- 
posing that  collusion  had  existed  between  the  charterer  and  the  mas- 
ter and  they  had  an  intention  of  blockade  running,  the  petitioner,  the 
owner  of  the  ship,  had  no  knowledge  of  it,  and  therefore  the  steamer 
should   be   released,   although   the   cargo   may   be   confiscated. 

The  principal  point  of  the  opinion  of  the  Public  Procurator  is  that 
the  steamer  attempted  to  run  the  blockade  of  Port  Arthur,  and  it 
was  a  conspicuous  fact  that  the  blockade  was  at  that  time  actually 
enforced,  so  the  steamer  should  be  confiscated. 

After  due  consideration,  the  Court  concludes   as   follows: 

It  has  been  admitted  both  in  the  rules  and  usage  of  International 


CHAP.  V.]  BLOCKADE.  717 

Law  that  when  a  blockade  is  effectually  maintained,  should  any  ship, 
knowing  the  fact  of  blockade,  proceed  with  the  intention  of  getting 
into  the  blockaded  zone,  she  shall  be  considered  a  blockade  runner, 
and  shall  be  confiscated,  no  matter  whether  her  owner  had  knowledge 
of  it  or  not;  and  there  was  no  doubt  in  the  present  case  that  the 
blockade  of  the  southern  coast  of  Liaotung  Peninsula,  declared  by  the 
Commander-in-Chief  of  the  Japanese  Combined  Fleet  on  the  26th 
day  of  the  5th  month  of  the  37th  year  of  Meiji,  was  at  that  time 
effectively  enforced.  It  has  been  common  practice  of  those  who  at- 
tempt to  run  blockade  to  prepare  several  kinds  of  false  papers  in 
order  to  escape  capture.  Among  the  papers  of  this  steamer,  the  bills 
of  lading  are  only  for  one  part  of  the  cargo,  while  there  are  some 
disagreements  between  the  engineer's  original  log-book  and  its  copy. 
Moreover,  the  papers  relating  to  the  cargo,  which  were  produced  by 
the  attorney  for  the  petitioner,  do  not  correspond  with  the  actual 
goods.  All  these  papers  cannot,  therefore,  be  taken  as  legitimate 
documents.  The  attorney  for  the  petitioner,  giving  reason  for  the 
steamer's  not  having  taken  the  usual  Newchwang  route  after  round- 
ing Shantung  Promontory,  states  that  the  steamer's  speed  was  re- 
duced at  that  time  on  account  of  some  defects  in  her  engine,  and 
moreover  she  was  in  fear  of  being  blown  ashore.  However,  when 
the  statements  of  the  Chinese  who  were  working  in  the  engine  room 
at  that  time,  the  original  of  the  engineer's  log-book,  and  the  other 
evidence,  cited  before,  as  to  whether  or  not  some  defects  existed 
in  her  engine  are  considered,  not  only  the  above  explanation  is  in- 
admissible, but  it  becomes  evident  that  she  was  captured  while  navi- 
gating to  Port  Arthur,  after  making  a  sudden  turn  to  northeast  off 
Wei-hai-wei.  The  fact  that  she  was  captured  GO  to  70  nautical  miles 
off  Port  Arthur  does  not  prevent  judging  this  steamer  as  having 
proceeded  with  the  intention  of  running  into  the  blockaded  zone. 
As  to  other  points  contended  by  the  attorney  for  the  petitioner,  the 
Court  does  not  see  any  necessity  of  giving  explanation  except  referring 
to  several  facts  cited  before. 

For  the  above  reason,  the  Court  cannot  but  assume  that  the  char- 
terer and  the  master,  in  this  case,  knowing  that  Port  Arthur  was 
actually  blockaded  by  the  Japanese  Squadron,  attempted  to  run  the 
blockade  and  smuggle  cargo  into  that  port. 

The  decision  is,  therefore,  given  as  in  the  text. 

Given  this  1st  day  of  the  3rd  month  of  the  38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  C.  Midsukami,  tak- 
ing part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


718  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Decision  of  the  Sasebo  Prize  Court  on  the  Same  Case  (about 

the  Cargo). 
Published  in  the  Official  Gazette,  on  July  29,  1905. 
The  following  decision  was  given  on  the  1st  of  the  3rd  month  of 
the  38th  year  of  Meiji,  in  the  case  of  the  cargo  of  the  German  steam- 
ship  Veteran. 

Petition  No.  II. 

Decision. 
Petitioner — Emeel  Walkhoff,  German  subject,  manager  of 

Diederichsen,  Jebsen  &  Co.,  Tientsin,  China. 
Petitioner — Welnell    Gemy,    German    subject,    manager    of 

Diederichsen,  Jebsen  &  Co.,  Tientsin,  China. 
Attorney — T.    Ishibashi,    Counsellor    at    Law,    41,    Togiya 
Machi,  Nagasaki. 

In  the  case  of  the  cargo  of  the  German  steamship  Veteran,  decision 
is  given  as  follows: 

Text  of  the   Decision. 

The  goods  mentioned  in  the  annexed  list,  which  were  the  cargo  of 
the  steamship   Veteran,  are  hereby  confiscated. 

Facts  and  the  Grounds  of  the  Decision. 

The  goods  of  the  present  case,  being  the  property  of  Diederichsen, 
Jebsen  &  Co.,  a  German  firm  at  Tsingtau,  China,  were  loaded  in  the 
German  steamship  Veteran,  a  chartered  ship  of  the  above  firm,  and 
were  despatched  from  the  said  Tsingtau  at  midnight,  of  the  17th  of 
the  11th  month  in  the  37th  year  of  Meiji,  consigned  to  Port  Arthur. 
When  the  said  German  steamship  Veteran  was  captured  by  the  Japa- 
nese man-of-war  Tatsuta,  as  a  blockade  runner,  at  4  o'clock  a.m.  on 
the  19th  of  the  same  month,  in  N.  Lat.  38°  6'  30",  E.  Long.  122°  40' 
30",  the  said  goods  were  captured  together  with  the  said  ship. 

The  aforesaid  facts  are  proved  by  the  written  statement  of  Lieu- 
tenant S.  Ohare,  acting  prize  officer,  by  the  affidavits  of  Karl  Edlar, 
master  of  the  Veteran,  Anton  Muller,  first  mate,  Max  Hase,  chief  en- 
gineer, Phillip  Bluns,  second  engineer,  Wangteijui,  boatswain,  Wang- 
shihyn,  Wangchishan,  quartermasters,  Rutelai,  head  fireman,  certifi- 
cate of  the  ship's  nationality,  originals  of  the  ship's  log-book  and 
engineer's  log-book,  opinion  given  in  writing  by  K.  Hirano,  Staff  En- 
gineer, as  to  the  damage  in  engine  room  and  guide  rod  of  the  steam- 
ship Veteran,  and  charter  party  produced  by  the  attorney  for  the 
petitioners. 

The  chief  point  of  the  statement  of  the  attorney  for  the  petitioners 
is  that  all  the  goods  of  this  case  should  be  released.     The  attorney  for 


CHAP.  V.]  BLOCKADE.  719 

the  petitioners,  giving  reason  of  his  statement,  says  that  the  object 
of  the  steamship  Veteran,  on  her  departure  from  Tsingtau,  on  the  17th 
of  the  11th  month  in  the  37th  year  of  Meiji,  was  to  go  first  to  New- 
chwang,  next  to  call  at  Tientsin  and  finally  to  proceed  to  Chefoo.  This 
fact  is  proved  by  charter  party  between  the  ship  owner  and  the  peti- 
tioner, bills  of  lading,  etc.  One  part  of  the  cargo  was  to  be  consigned 
to  Bandinell  &  Co.,  Newchwang,  one  part  to  be  sent  to  Telge  und 
Schroeter,  Tientsin,  and  other  part  to  the  Newchwang  branch  of 
Diederichsen,  Jebsen  &  Co.,  but  none  was  consigned  to  Port  Arthur.  It 
appears  that  the  steamer's  course  was  a  little  too  far  seaward  and 
too  much  northeasterly  from  the  Shantung  Promontory  to  Newchwang, 
but  there  was  something  wrong  in  her  engine  at  that  time  and  her 
speed  was  thereby  reduced  and,  moreover,  the  steamer  was  threatened 
to  be  blown  ashore  by  a  northwest  wind,  so  her  course  was  purposely 
shaped  more  to  the  northward  and  eastward  to  Newchwang.  She  did 
not,  however,  proceed  towards  Port  Arthur.  The  Public  Procurator's 
statement  says  that  the  words,  "  To  Port  Arthur,"  which  were  written 
on  the  cases  of  milk  and  soap,  part  of  the  cargo,  are  proof  that  she 
was  secretly  attempting  to  go  to  Port  Arthur.  But  it  is  unreasonable 
to  think  that  one  who  attempts  to  run  the  blockade  would  write  such 
signs  as  to  show  his  own  offence,  so  the  fact  that  there  was  the  above 
writing  may  rather  be  taken  as  a  proof  that  no  ill  intention  was 
entertained  by  the  steamer.  The  master's  act  in  having  the  ship's 
bell  removed  after  her  departure  was  not  for  the  purpose  of  making 
secret  navigation  but  because  the  bell  bore  the  inscription  of  "  Thales," 
the  ship's  former  name.  It  was  taken  down  simply  with  a  supersti- 
tious idea  to  wish  her  future  good  luck.  The  ship's  papers,  in  which 
Newchwang  was  designated  as  the  port  of  destination,  were  complete 
and  all  true,  and  there  was  no  great  inconsistency  between  the  ship's 
destination,  clearly  shown  in  these  papers  and  her  actual  course.  More- 
over, the  steamer  was  captured  from  60  to  70  nautical  miles  off  Port 
Arthur,  which  is  too  far  to  consider  her  as  having  attempted  to  pass 
the  blockaded  line  and  run  into  the  prohibited  zone.  For  the  above 
reasons,  the  capture  was  unreasonable. 

The  principal  point  of  the  opinion  of  the  Public  Procurator  is  that 
the  steamer  attempted  to  run  the  blockade  of  Port  Arthur,  and  it 
was  a  conspicuous  fact  that  the  blockade  was  actually  enforced  at  that 
time,  so  the  cargo  of  the  present  case,  which  had  been  loaded  in  that 
ship  and  sent  out  in  order  to  be  smuggled,  should  all  be  confiscated. 
After  due  consideration  the  Court  concludes  as  follows: 
It  has  been  admitted  both  in  the  rules  and  usages  of  International 
Law,  that  the  goods  loaded  in  the  ship  which  commits  the  breach  of 
blockade,    are    liable    to    confiscation,    except    when    the   owner   of   the 


720  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

goods  has  no  knowledge  thereof.  While  it  has  been  the  common 
practice  of  those  who  attempt  to  violate  blockades,  to  prepare  vari- 
ous false  papers  in  order  to  escape  capture,  all  the  papers  of  the 
steamship  Veteran  cannot  be  taken  as  legitimate,  because  the  bill 
of  lading  is  not  for  all  the  cargo  but  only  for  one  part,  while  the 
engineer's  original  log-book  differs  in  some  points  from  its  copy,  and 
the  papers  relating  to  the  cargo  which  were  produced  by  the  attorney 
for  the  petitioners,  do  not  correspond  with  the  actual  goods.  The 
attorney  for  the  petitioners  states,  as  the  reason  of  the  steamship 
Veteran's  not  having  taken  the  usual  Newchwang  route,  after  round- 
ing Shantung  Promontory,  that  the  ship's  speed  was  reduced  on  ac- 
count of  the  damage  to  her  engine  at  that  time  and  she  was  in  fear 
of  being  blown  ashore.  But  when  the  statements  of  the  Chinese  who 
who  were  at  work  in  the  engine  room  at  that  time,  the  original  of  the 
engineer's  log-book  and  the  before  cited  other  evidences,  as  to  whether 
some  defects  existed  in  her  engine,  are  considered,  not  only  the  above 
explanation  is  inadmissible,  but  it  becomes  evident  that  she  was  cap- 
tured while  navigating  to  Port  Arthur  after  making  a  sudden  turn 
to  the  northeast  off  Wei-hai-wei.  The  fact  that  she  was  captured  60 
to  70  miles  off  Port  Arthur  does  not  prevent  the  judgment  of  this 
steamer  as  having  proceeded  writh  the  intention  of  running  into  the 
blockade  zone.  As  to  other  points  contended  by  the  attorney  for  the 
petitioners,  the  Court  does  not  see  any  necessity  of  giving  explanation, 
except  referring  to  facts  concerning  the  vessel  cited  hereinbefore. 

For  the  above  reason,  the  Court  cannot  but  assume  that  the  char- 
terer and  the  master,  knowing  that  Port  Arthur  has  actually  been 
blockaded  by  the  Japanese  squadron,  attempted  to  run  the  blockade 
and  smuggle  goods  to  that  port.  As  it  is  evident  that  not  only  were 
the  goods  of  the  present  case  loaded  in  the  ship  which  violated  the 
blockade,  but  all  of  them  belong  to  the  charterer  who  attempted  the 
breach  of  blockade,  they  should  be  entirely  confiscated.  The  decision 
is  therefore  given,  as  in  the  text. 

Given  this  1st  day  of  the  3rd  month  in  the  38th  year  of  Meiji,  at 

the   Sasebo  Prize   Court,  the  Public  Procurator,  C.   Minakami,  taking 

part. 

(Signed)     The  President  and  Councillors  of  the 

Sasebo  Prize  Court. 

List  of  Goods. 

Consignor,  Diederichsen,  Jebsen  &  Co.,  Tsingtau;  consignee,  To  order. 

No.     1.     Fur    89  packages. 

No.     2.     Fur  made  overcoats   130  packages. 

No.     3.     Long  boots 60  cases. 


CHAP.  V.]  BLOCKADE.  721 

No.     4.  Cotton  made  trousers 40  packages. 

No.     5.  Cotton  made  shirts 19  packages. 

No.     6.  Salt  beef 1859  barrels. 

No.     7.  Salted  vegetables  339  barrels. 

No.     8.  Tea     300  cases. 

No.     9.  Potatoes    379  bags. 

No.  10.  Canned  milk  325  cases. 

No.  11.  Canned  meat 1454  cases. 

No.  12.  Tobacco 68  cases. 

No.  13.  Cigars    3  cases. 

No.  14.  Matches    78  cases. 

No.  15.  Soap    1G00  cases. 

No.  1G.  Drugs    13  barrels. 

No.  17.  Drugs  (not  covered)    1  package. 

No.  18.  Sulphuric  acid 9G  cases. 

No.  19.  Medical  apparatus  74  cases. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected  for 
the  same  reasons  held  by  the  Sasebo  Prize  Court. 

Case  IV.     The  King  Arthur. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  July  28,  1905. 
Decision  of  the  Rasebo  Prize  Court. 
The  following  decision  was  given  on  the  9th  of  the  3rd  month  in 
the   38th   year  of  Meiji,   in   the   case   of   the   British   steamship   King 
Arthur. 

Petition  No.  I. 

Decision. 
Petitioner — Alonzo  Albert   Cox,   British   subject,   135   New 
Cross,  Woller  Road,  London. 
In  the  prize  Case  of  the  British  steamer  King  Arthur  the  decision 
is    given   as   follows: 

Text   of  the  Decision. 
The  steamship  King  Arthur  is  hereby  confiscated. 
The   petition   claiming   the   payment    of   damages    and   expenses   is 
dismissed. 

Facts  and  the  Grounds  of  the  Decision. 
The  steamship  King  Arthur  of  the  present  case  is  the  property  of 
the  petitioner,  Alonzo  Albert  Cox,  a  British  subject,   with  her  usual 
home  port  at  Bombay,  India,  British  territory,  and  has  been  engaged 


722  NEW  CASES   ON   PRIZE  LAW.  [PART  V. 

in  the  transportation  of  goods  under  the  British  merchant  flag.  On 
the  8th  day  of  the  11th  month  of  the  37th  year  of  Meiji  she  de- 
parted from  Bombay,  under  the  personal  command  of  Cox,  having  on 
board  50,000  sacks  of  flour,  his  property,  with  the  object  of  import- 
ing the  same  to  Port  Arthur,  knowing  that  the  port  was  actually 
blockaded  by  the  Japanese  Squadron,  but  ostensibly  pretending  to 
go  to  Newchwang,  China.  Having  met  a  Russian  warship  at  sea  5  to 
6  nautical  miles  off  Laotishan,  Liaotung  Peninsula,  on  the  12th  of 
the  12th  month,  she  was  guided  by  the  warship  to  Port  Arthur,  where 
she  unloaded  her  cargo  and  took  on  board  one  Paury  and  two  others, 
German  merchants,  who  were  at  that  place,  and  being  intrusted  on  her 
own  proposal  with  numerous  letters  of  communication,  left  Port 
Arthur  on  the  19th  of  same  month.  On  her  way  to  Chefoo,  China, 
after  leaving  Port  Arthur,  she  was  discovered  about  12  miles  from 
Chefoo  by  the  Japanese  man-of-war  Asagiri  on  blockading  duty,  and 
was  ordered  to  stop  at  about  11  p.m.  the  same  day,  and  taken  to 
Kuanglu  Island  of  the  Changshan  Group,  China.  After  that  she  was 
captured  by  the  Otowa,  one  of  the  Japanese  blockading  men-of-war,  at 
8  o'clock  a.m.  on  the  21st  of  the  same  month.  She  had  no  cargo  at 
the  time  of  capture. 

The  above  facts  are  proved  by  the  written  statement  and  certifi- 
cate as  to  money  and  valuables  found  on  board  the  vessel  made  by 
Junior  Lieutenant  M.  Kitamura,  who  acted  for  the  captain  of  the 
Japanese  man-of-war  Otowa,  affidavits  of  the  Master  Cox,  1st  mate  Tri- 
pred,  2nd  mate  Leek,  3rd  mate  Tarner,  1st  engineer  Phillips,  2nd 
engineer  Johnson,  3rd  engineer  Cooper,  steward  Maurice,  passengers 
Paury,  Leesecke,  Obelbeck,  and  Wenell,  all  of  the  steamship  King 
Arthur;  register  of  ship's  nationality,  log-book,  engineer's  log-book, 
clearance,  manifest,  certificate  of  capture  given  by  the  Russian  naval 
authorities  at  Port  Arthur,  letters  of  communication  intrusted  to 
the  master  by  residents  of  Port  Arthur,  and  letter  addressed  to  the 
master  from  Russian  military  officer  Malchenco,  requesting  to  take  care 
of  letters  of  communication. 

The  main  points  of  the  statement  of  the  petitioner  are:  The 
steamer  was  captured  by  the  Russian  warship  while  navigating  for 
Newchwang  and  taken  to  Port  Arthur,  and  she  did  not  enter  that 
port  in  violation  of  the  blockade.  This  fact  is  clearly  proved  by  the 
certificate  of  capture  given  by  the  Russian  naval  authorities.  Be- 
sides considering  the  fact  that  this  steamer  was  not  prevented  by 
Japanese  men-of-war  either  from  entering  or  leaving  Port  Arthur, 
but  navigated  freely  until  she  came  off  Chefoo,  where  she  saw  for 
the  first  time  a  Japanese  man-of-war,  the  blockade  of  Liaotung 
Peninsula  cannot  be  said  to  have  been  effective. 


CHAP.  V.]  BLOCKADE.  723 

Even  supposing  that  the  blockade  had  been  effective,  and  the 
steamer  did  violate  it,  now  that  the  blockade  of  Liaotung  Peninsula 
has  been  discontinued,  before  judgment  in  this  case  is  given,  the 
steamer  ought  to  be  released  for  the  same  reason  given  in  the  deci- 
sion of  the  Lisette  case,  that  when  a  blockade  is  discontinued,  there 
is  no  need  of  punishment  for  the  prevention  of  future  offences.  For 
the  above  reason,  the  petitioner  requests  the  release  of  the  steamer, 
together  with  all  her  tackle,  and  also  the  payment  of  loss  and  ex- 
penses incurred  by  the  capture. 

The  main  points  of  the  opinion  of  the  Public  Procurator  are:  That 
the  steamer  of  this  case  violated  the  blockade,  and  that  as  it  is  a 
conspicuous  fact  that  the  blockade  was  effectively  maintained  at  that 
time,  judgment  condemning  the  steamer  should  be  given,  and  the  peti- 
tion claiming  the  payment  of  damage  and  expenses  should  be  dismissed. 

After  due  consideration  the  Court  concludes  as  follows: 

It  is  a  fact  widely  known  to  the  world  that  the  middle  of  De- 
cember is  the  season  when  navigation  to  the  port  of  Newchwang  is 
yearly  suspended.  It  is  incredible  that  this  steamer  should  have 
contrived  the  importation  of  a  large  quantity  of  flour  to  that  port 
during  this  season  of  the  year,  when  no  definite  person  had  given  the 
order.  Moreover,  when  the  fact  is  considered  that  she  sailed  to  a 
place  5  to  6  nautical  miles  off  Laotishan,  which  is  not  the  usual 
route  to  Newchwang,  it  is  presumable  that  her  destination  was  not 
Newchwang.  Besides,  notwithstanding  the  statement  of  the  master 
that  he  anticipated  the  confiscation  of  his  ship  by  the  Russians  until 
he  obtained  permission  to  leave  Port  Arthur,  he  took  on  board  his 
ship  four  German  merchants  who  were  leaving  Port  Arthur,  and 
accepted  voluntarily  to  take  charge  of  numerous  letters,  before  the 
said  permission  was  given  by  the  Russian  authorities.  These  facts 
show  that  the  steamer's  departure  from  Port  Arthur  after  discharg- 
ing her  cargo  was  already  arranged  from  the  beginning,  and  that 
the  departure  was  decided  upon  prior  to  the  permission  from  the 
Russians  had  been  given.  Moreover,  while  it  has  been  the  established 
rule  of  International  Law  that  a  captured  ship  must  undergo  adjudi- 
cation by  a  prize  court,  this  steamer  was  not  examined  by  any  prize 
court  or  any  other  Russian  authorities  at  Port  Arthur;  yet  the 
master  did  not  make  any  protest  against  the  Russian  measures.  So 
the  certificate  of  capture,  given  by  the  Russian  naval  authorities,  re- 
ferred to  by  the  petitioner,  is  not  trustworthy.  It  must  be  said,  on 
the  contrary,  that  the  said  certificate  was  given,  partly  to  guarantee 
the  safe  departure  of  the  steamer,  and  partly  to  prove  the  accom- 
plishment of  the  importation.  It  is  therefore  evident  that  the  steamer 
was  not  actually  captured  by  the  Russian  man-of-war,  but  that  she 


724  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

came  out  of  Port  Arthur  after  having  accomplished  smuggling  into 
that  port. 

The  petitioner  contends  that  as  the  steamer  was  able  to  enter 
and  leave  Port  Arthur  without  any  interruption  the  blockade  could 
not  have  been  effective.  But  it  is  an  undoubted  fact  that  the  block- 
ade of  the  southern  coast  of  Liaotung  Peninsula,  declared  by  the 
Commander-in-Chief  of  the  Combined  Fleet,  on  the  26th  of  the  5th 
month  in  the  37th  year  of  Meiji,  was  effectively  enforced,  and  it  is 
an  established  rule  of  International  Law  that  the  effectiveness  of  a 
blockade  is  not  disproved  simply  by  one  or  two  ships  passing  the 
blockade  line  by  evading  the  watch  of  the  blockading  squadron. 
The  petitioner  also  quotes  the  decision  of  the  Lisette  case,  and  argues 
that  as  the  blockade  of  Liaotung  Peninsula  had  been  discontinued 
before  the  decision  of  this  case  the  vessel  should  be  released.  But 
that  part  of  the  decision  of  the  Lisette  case  quoted  by  the  petitioner 
was  given  as  a  supplementary  reason  for  the  release  of  the  ship, 
which  was  captured  after  the  blockade  had  been  abandoned,  and 
does  not  apply  to  this  steamer,  which  was  captured  while  the  block- 
ade was  in  force. 

The  present  case  would  compare  rather  to  the  case  of  the  Char- 
lotte Sophia,  which  was  adjudicated  at  the  same  time  as  the  Lisette 
case,  but  in  which  the  ship  was  captured  while  the  blockade  was  in 
force,  and  was  finally  confiscated. 

To  sum  up,  this  steamer  violated  the  effective  blockade  of  the 
Japanese  Squadron,  entering  into  and  getting  out  of  Port  Arthur 
without  any  lawful  reason,  and  it  is  therefore  lawful,  according  to 
International  Law,  that  she  shall  be  confiscated,  together  with  her 
accessories.  The  petitioner's  claim  of  loss  and  expenses  incurred  by 
the  capture  of  the  steamer  should  be  dismissed,  as  such  matters  are 
not  in  the  jurisdiction  of  the  prize  court. 

For  the  above  reason  the  decision  has  been  given  as  in  the  text. 

Given  this  9th  day  of  the  3rd  month  in  the  38th  year  of  Meiji,  at 

the  Sasebo  Prize  Court,  the  Public  Procurator,  S.  Yamamoto,  taking 

part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Decision  of  the  Higher  Prize  Court  on  the  Same  Case. 
Published  in  the  Official  Gazette,  Tokyo,  on  July  28,   1905. 

The  following  decision  was  given  on  the  11th  of  the  7th  month  in 
the  38th  year  of  Meiji,  by  the  Higher  Prize  Court,  in  the  case  of  the 
British  steamship  King  Arthur. 


CHAP.  V.]  BLOCKADE.  725 

Decision. 
Case  No.  XLIII. 

Petitioner — Alonzo    Albert    Cox,    British    subject,    residing 

at  No.  135  New  Cross,  Woller  Road,  London. 
Attorney — S.  Hatakeyama,  Counsellor  at  Law,  18  Hirato 
Machi,  Nagasaki. 

In  reference  to  the  prize  case  of  the  British  steamship  King  Arthur, 
which  was  captured. by  the  Japanese  man-of-war  Asagiri  at  sea  off 
Chefoo,  China,  on  the  19th  of  the  12th  month  in  the  37th  year  of 
Meiji,  the  Sasebo  Prize  Court  gave  decision  on  the  9th  of  the  3rd 
month  in  the  38th  year  of  Meiji,  to  the  effect  that  the  steamship 
King  Arthur  be  confiscated,  and  the  petition  claiming  payment  of 
damages  and  expenses  dismissed;  whereas  the  advocate  Hatakeyama, 
attorney  for  the  petitioner  Alonzo  Albert  Cox,  filed  an  appeal  against 
that  part  of  the  above  decision  which  says  "the  steamship  King 
Arthur  shall  be  confiscated,"  the  case  has  been  tried  before  this  Court, 
K.  Tsuzuki  and  B.  Ishiwatari,  Public  Procurators  of  the  Higher  Prize 
Court,  taking  part,  and   decision   is   given   as   follows: 

The  main  points  and  reasons  of  protest  made  by  Hatakeyama, 
attorney  for  the  petitioner,  are: 

(1)  The  steamer  was  captured  by  a  Russian  torpedo  boat  while 
navigating  Newchwang  and  taken  to  Port  Arthur,  but  she  never 
violated  the  blockade.  The  ruling  in  the  original  decision  that  the 
petitioner,  knowing  that  Port  Arthur  was  actually  blockaded  by 
Japanese  Squadron,  departed  from  Bombay  on  the  8th  day  of  the 
11th  month  in  the  37th  year  of  Meiji,  having  on  board,  his  own 
property,  500,000  sacks  of  flour,  with  the  object  of  importing  the 
same  to  Port  Arthur,  but  pretending  to  go  to  Newchwang,  China, 
and  having  met  with  a  Russian  warship  at  sea  5  to  6  nautical  miles 
off  Laotishan,  Liaotung  Peninsula,  on  the  12th  of  the  12th  month, 
was  guided  by  that  warship  to  Port  Arthur,  and  discharged  there 
the  said  cargo;  and  the  ruling  that  the  steamer's  departure  from 
Port  Arthur  after  her  unloading  was  anticipated  from  the  beginning, 
and  was  not  decided  upon  only  after  permission  had  been  obtained 
from  the  Russian  authorities;  these  rulings  have  not  been  proved 
by  any  of  the  documents  cited  in  the  original  decision,  except  the 
single  fact  that  the  master  took  on  board  certain  German  merchants, 
who  were  leaving  Port  Arthur,  and  at  his  own  proposal  took  charge 
of  numerous  letters,  this  notwithstanding  his  statement  in  Court  that 
he  had  expected  the  confiscation  of  the  steamer  by  the  Russians, 
until  he  obtained  permission  to  leave  Port  Arthur.  It  is  stipulated 
in   Art.   LXVL   of   the   Japanese    Regulations   Governing   Captures    at 


726  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Sea  that  in  deciding  whether  a  vessel  is  to  be  captured  or  not,  the 
nature  of  the  vessel,  her  equipments,  cargo,  and  papers,  the  testimony 
of  the  master,  crew,  and  others,  etc.,  shall  be  taken  into  consider- 
ation. Moreover,  it  is  a  principle  of  International  Law  that  the 
evidence  in  a  prize  case  should  only  be  taken  from  among  her  ship's 
papers,  affidavits  of  master,  officers,  and  those  who  were  in  the 
ship  at  the  time  of  capture,  and  not  from  anything  else,  and  that 
the  burden  of  proof  of  the  breach  of  neutrality  rests  with  the  captor. 
The  decision  of  the  original  Court,  however,  placed  the  burden  of 
proof  on  the  opposite  side,  unreasonably  taking  the  ship's  papers  as 
false,  and  made  presumptions  o.f  fact  not  warranted  by  lawful  proof, 
with  the  previous  assumption  that  the  appellant  was  an  offender. 
This  decision  is,  therefore,  unreasonable,  being  not  only  in  opposition 
to  the  stipulation  of  the  regulation  governing  Captures  at  Sea  and 
the  principle  of  International  Law,  but  to  the  principle  of  ordinary 
justice. 

(2)  The  decision  maintains  that,  as  the  middle  of  December  is 
the  season  when  navigating  to  Newchwang  is  yearly  suspended,  it  is 
incredible  that  importation  of  a  large  quantity  of  flour  should  have 
been  contrived  at  that  time  of  year.  But  the  steamer  departed  from 
Bombay  on  the  8th  of  the  11th  month,  and  she  could  have  easily 
arrived  at  Newchwang  before  the  middle  of  December,  if  her  engine 
had  not  been  damaged  during  the  voyage,  and  its  repair  had  not 
caused  some  delay.  And  even  with  that  delay,  she  was  seized  by 
the  Russian  man-of-war  on  the  12th  of  the  12th  month.  It  is  there- 
fore groundless  to  assert  that  it  is  incredible  that  the  steamer  should 
have  contrived  to  import  the  cargo  to  Newchwang,  knowing  that 
navigation  is  suspended  during  that  season.  Besides  the  quantity  of 
flour  to  be  imported  to  North  China  is  vastly  increasing  year  by 
year,  and  the  flour  loaded  in  this  steamer  was  not  in  such  extraordi- 
narily large  quantity  as  to  lead  one  to  suspect  that  it  was  not  to 
be  imported  to  Newchwang. 

(3)  The  former  decision  says  that  as  the  steamer  was  5  to  6 
miles  off  Laotishan,  which  is  not  the  usual  route  to  Newchwang,  it 
is  presumable  that  her  destination  was  not  Newchwang.  It  is  true 
that  the  course  taken  by  this  steamer  was  more  or  less  apart  from 
the  usual  route,  on  account  of  the  damage  to  her  engine  and  the  con- 
sequent diminution  of  her  propelling  power,  but,  according  to  the 
chart,  it  is  the  direct  route  from  Bombay  to  Newchwang,  and  it  is 
quite  proper  for  a  merchant  ship  to  navigate  that  route.  Therefore 
the  explanation  given  in  the  former  decision  about  this  point  is  un- 
reasonable. 

(4)  It   was   pointed   out   in   the   former   decision   that    while   it    is 


CHAP.  V.]  BLOCKADE.  727 

an  established  rule  of  International  Law,  that  a  captured  ship  should 
undergo  adjudication  by  a  Prize  Court,  this  steamer  had  never  been 
examined  by  any  Prize  Court  nor  by  any  other  Russian  authorities 
at  Port  Arthur,  yet  the  master  did  not  make  any  protest  against 
the  Russian  measure  .  .  and  concluded  that,  "it  is  therefore  evi- 
dent that  the  steamer  was  never  captured  by  the  Russian  man-of-war, 
but  she  came  out  of  Port  Arthur  after  having  accomplished  smug- 
gling into  that  port."  The  reason  why  this  steamer  was  not  exam- 
ined by  the  Russian  prize  court  or  any  other  Russian  authorities  at 
Port  Arthur  was  that  the  Russian  Army  and  Navy  at  Port  Arthur 
were  in  such  a  position  at  that  time  that  it  would  have  been  merely 
a  burden  and  disadvantage  for  them  to  confiscate  this  steamer  in- 
stead of  deriving  any  advantage  by  that  step.  It  was  a  conspicuous 
fact  that  at  that  time  the  defence  of  Port  Arthur  could  not  long 
be  sustained,  so  the  Russian  act  of  taking  all  provisions  out  of  the 
ship  and  letting  her  out  from  the  port,  instead  of  confiscating  such 
a  small  vessel,  was  the  wisest  step  for  them.  On  the  other  hand, 
the  appellant  hastily  ran  out  from  the  port,  to  get  away  from  the 
dangerous  port  as  soon  as  possible.  It  is  therefore  a  gross  miscon- 
struction of  facts  to  allege  that  the  appellant  acted  against  Inter- 
national  Law. 

'(5)  The  former  decision  states  that  this  steamer  violated  the 
blockade,  but,  as  explained  before,  the  appellant  never  had  any  inten- 
tion of  violating  the  blockade.  Even  supposing  that  he  had  that 
intention,  the  blockade  of  Port  Arthur  was  not  effective  at  that  time. 
In  order  to  make  a  blockade  effective,  it  is  required  by  International 
Law  that  a  standing  squadron  should  keep  watch  so  closely  that  a 
ship  would  incur  evident  risk  as  soon  as  she  entered  within  the 
blockaded  line.  The  Declaration  of  Paris  of  1856  stipulates  that  an 
effective  blockade  must  be  maintained  by  actual  force  sufficient  to 
prevent  any  ship  from  approaching  the  enemy's  shore.  If,  therefore, 
the  guarding  warship  be  sent  away,  or  the  watch  neglected  for  some 
other  cause,  the  neutral  may  have  freedom  of  navigation  to  that 
portion.  The  stipulation  of  Art.  XXI.  of  the  Japanese  Regulations 
governing  Captures  at  Sea  is  also  founded  on  a  similar  basis.  In 
the  present  case  the  former  decision  holds  that  this  steamer  met 
with  a  Russian  warship  at  sea  5  to  6  nautical  miles  off  Laotishan, 
Liaotung  Peninsula,  and,  being  guided  by  the  latter,  proceeded  to 
Port  Arthur.  This  is  to  say  that  the  enemy  ship  was  cruising  in 
the  open  sea,  going  5  to  6  miles  away  from  the  blockaded  port,  seized 
a  merchantman  and  towed  her  to  the  port  undisturbed,  and  sent 
her  out  again  after  unloading  her  in  the  port.  Such  cannot  be  said 
to    have    been   a   state    of    blockade.      Besides,    this    steamer    had   not 


728  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

seen  any  shadow  of  a  Japanese  warship  since  she  left  Port  Arthur 
until  the  time  when  she  was  discovered  by  a  Japanese  man-of-war 
at  sea  only  12  nautical  miles  off  Chefoo.  Now,  considering  the  above 
fact  that  the  enemy's  ship  could  have  captured  a  merchantman  by 
sailing  far  away  from  the  port,  and  that  the  merchantman  could 
have  freely  left  the  port  and  proceeded  as  far  as  off  Chefoo  in  fine 
weather,  it  is  evident  that  the  blockade  of  Port  Arthur  was  not  at 
that  time  effective. 

(6)  When  a  ship  violates  a  blockade  she  is  liable  to  capture  until 
her  return  voyage  is  completed.  But  that  she  is  exempt  from  cap- 
ture or  punishment,  should  the  blockade  be  abandoned  before  her 
capture,  is  clearly  shown  in  the  decision  of  the  Lisette  case,  which 
says,  "  when  blockade  is  abandoned,  the  punishment  for  the  preven- 
tion of  future  offence  cannot  be  inflicted."  Although  the  steamship 
King  Arthur  was  captured  before  the  abolition  of  the  blockade  was 
publicly  announced,  she  has  not  been  tried  by  the  Prize  Court  until 
after  the  abrogation  of  the  punitive  regulation.  Now  the  object  of  a 
belligerent  in  capturing  a  neutral  blockade  runner  is,  as  a  rule,  to 
enforce  the  blockade,  and  not  to  obtain  goods  or  to  punish  the  neu- 
tral owner.  The  steamship  King  Arthur  was  captured  before  the 
abolition  of  the  blockade,  but  as  her  offence  could  not  be  repeated, 
she  ought  to  be  released  just  in  the  same  manner  as  the  ship  which 
was  captured  after  the  abolition  of  the  blockade. 

The  main  points  of  the  reply  of  S.  Yamamoto,  Public  Procurator 
of  the  Sasebo  Prize  Court,  are: 

(1)  The  appellant,  producing  a  certificate  of  capture  given  by  the 
Russian  authorities  at  Port  Arthur,  contends  that  the  steamer  was 
captured  and  taken  to  Port  Arthur  by  a  Russian  warship,  and  her 
cargo,  consisting  of  flour,  was  confiscated,  but  she  never  violated  the 
blockade.  It  has,  however,  been  the  customary  way  of  blockade  run- 
ners going  to  Port  Arthur  to  give  a  signal  at  sea  off  Laotishan,  and 
enter  the  port  guided  by  the  torpedo  boat  which  comes  out  to  meet 
her.  The  steamship  George,  which  was  adjudicated  at  this  prize  court, 
also  resorted  to  the  above  course.  Had  this  steamer  been  really  cap- 
tured as  the  appellant  states,  she  ought,  by  the  rule  of  International 
Law,  to  have  been  examined  by  a  Prize  Court,  and  not  even  her  cargo 
should  have  been  confiscated  without  the  decision  of  that  court.  But, 
according  to  the  statement  of  the  master,  this  steamer  has  never 
been  examined  by  a  Russian  Prize  Court  nor  any  other  Russian  au- 
thorities. Nevertheless,  she  took  on  board  some  German  merchants 
who  were  leaving  Port  Arthur,  and  accepted  voluntarily  to  take 
charge  of  numerous  letters,  when  she  had  not  yet  finished  her  un- 
loading.     These    facts    are    evidently    proofs    that    the    master    knew 


CHAP.  V.]  BLOCKADE.  729 

previously  that  the  steamer  would  leave  the  port  as  soon  as  her  cargo 
was  discharged.  Inferring  from  the  foregoing,  there  is  no  doubt  that 
the  above-mentioned  certificate  was  nothing  more  than  a  device,  partly 
to  guarantee  her  safe  departure  and  partly  to  prove  the  success  of 
the  smuggling.  Moreover,  the  time  when  this  steamer  made  her 
voyage  was  just  the  season  in  which  Port  of  Newchwang  is  ice  bound 
and  navigation  suspended.  As  this  is  a  fact  which  any  navigator 
should  know,  the  master  of  this  steamer  must  have  known  it.  Then, 
it  must  be  maintained  that  this  steamer,  while  pretending  to  be 
bound  for  Newchwang,  accomplished  smuggling  to  Port  Arthur,  and 
was  captured  by  the  Japanese  man-of-war  on  her  outward  voyage 
from  the  latter  port. 

(2)  The  appellant  argues  that  as  the  steamer  was  able  to  go  in 
and  out  of  Port  Arthur  undisturbed,  the  blockade  was  not  effective. 
The  necessary  condition  of  an  effective  blockade  is  that  it  shall  be 
maintained  by  a  force  sufficient  to  prevent  any  ships  approaching 
the  enemy's  coast,  and  it  was  a  conspicuous  fact  that  the  blockade 
of  the  southern  coast  of  Liaotung  Peninsula,  as  declared  by  the  Com- 
mander-in-Chief of  the  Japanese  Combined  Fleet,  had  always  been 
effectively  maintained  by  a  sufficient  force.  The  theory  and  prece- 
dents of  International  Law  agree  in  the  opinion  that  when  a  block- 
ade is  effectively  maintained,  the  mere  fact  that  certain  adventurous 
ships  succeed  in  passing  the  blockaded  line  with  impunity,  does  not 
render  that  blockade  void.  It  is  therefore  impossible  to  conclude  that 
the  Japanese  blockade  was  ineffective  simply  because  this  steamer 
was  able  to  get  within  the  blockaded  line,  escaping  the  attention  of 
the  blockading  ships  or  boats. 

(3)  The  decision  of  the  Lisette  case  having  regard  to  a  capture 
after  the  abolition  of  the  blockade  cannot  be  applied  to  the  present 
case,  which  is  a  capture  made  while  the  blockade  was  in  force. 

For  the  above  reasons,  there  is  no  ground  for  the  appeal,  while 
the  former  decision  is  clear  in  reasoning  and  entirely  correct.  The 
appeal  should  therefore  be  dismissed. 

The  Higher  Prize  Court  explains  the  reason  of  its  decision  with 
regard  to  this  case  as  follows: 

The  chief  point  of  the  first  reason  of  appeal  is  to  contend  that 
the  former  decision  did  not  show  any  lawful  proof  in  determining 
that  this  steamer  was  not  captured  by  the  Russian  warship,  but  had 
violated  the  blockade,  except  the  single  fact  that  she  took  on  board 
certain  German  merchants,  who  were  leaving  Port  Arthur,  and  also 
accepted  voluntarily  the  charge  of  numerous  letters,  before  her  clear- 
ance was  given.  But  it  is  clearly  shown  by  the  various  evidence  enu- 
merated in  the  former  decision,  that  the  original  court  did  not  judge 


730  NEW  CASES   ON  PRIZE   LAW.  [PART  V. 

this  steamer  a  blockade  runner  by  the  above  fact  alone,  so  the  first 
point  of  appeal  is  groundless.  The  commencement  of  suspension  of 
navigation  to  Newchwang  is  annually  between  the  27th  of  the  11th 
month  and  the  6th  of  the  12th  month.  The  date  on  which  this 
steamer  left  Bombay  was  the  8th  of  the  11th  month,  and  her  full 
speed  is  recorded  as  about  7 J  knots.  So,  even  supposing  she  had  not 
made  any  call  and  her  engine  was  quite  right,  she  would  have  re- 
quired about  20  days  to  navigate  about  5250  nautical  miles,  the  short- 
est route  from  Bombay  to  Newchwang,  and  her  arrival  at  Newchwang 
would  have  been  after  navigation  to  that  port  had  been  suspended. 
Such  being  the  case,  it  is  absolutely  incredible  that  the  steamer  should 
have  attempted  to  import  a  large  quantity  of  flour  to  that  port, 
when  there  was  no  definite  party  giving  the  order.  When  the  above 
fact  is  considered  conjointly  with  the  fact  that  she  was  proceeding 
5  or  6  nautical  miles  off  Laotishan,  which  is  not  the  usual  route  to 
Newchwang,  it  is  presumable  that  the  steamer's  destination  was  not 
Newchwang.  The  appellant  said  in  his  written  statement,  giving  rea- 
son of  appeal,  that  her  deviation  from  the  usual  route  was  caused 
by  the  diminution  of  the  propelling  power  on  account  of  the  damage 
to  her  engine,  but  when  he  was  examined  in  his  capacity  of  master, 
he  attributed  that  deviation  to  the  current,  inexperience  of  quarter- 
masters, and  inaccuracy  of  compass.  Thus  his  statements  contradict- 
ing each  other  cannot  be  trusted.  Therefore,  the  assumption  in  the 
former  decision  that  the  destination  of  this  steamer  was  not  Newch- 
wang is  quite  reasonable,  and  the  second  and  third  points  of  appeal 
are  both  groundless. 

It  is  an  established  rule  of  International  Law  that  a  captured  ship 
or  her  cargo  should  be  brought  to  the  examination  of  a  Prize  Court 
and  no  confiscation  thereof  should  arbitrarily  be  made.  So  it  is  in- 
conceivable that  the  Russian  Navy  would  have  dared  to  confiscate  a 
neutral  cargo  without  the  adjudication  of  a  prize  court,  even  if  the 
conditions  when  this  steamer  arrived  at  Port  Arthur  were  so  embar- 
rassed, as  the  appellant  states.  Therefore,  the  appellant's  assertion 
that  this  steamer  was  captured  by  the  Russian  warship  but  did  not 
attempt  smuggling  to  Port  Arthur  in  violation  of  the  blockade,  is  not 
trustworthy,  and  the  fourth  point  of  appeal  is  groundless.  The  block- 
ade of  the  southern  coast  of  Liaotung  Peninsula  was  maintained  by 
a  force  sufficient  for  the  purpose  since  its  declaration  by  the  Com- 
mander-in-Chief of  the  Combined  Fleet,  on  the  26th  of  the  5th  month 
of  the  37th  year  of  Meiji,  and  many  warships  were  always  actually 
engaged  in  the  blockade  of  the  coast,  stretching  about  20  nautical 
miles  in  the  direction  of  Port  Arthur.  '  On  the  day  this  steamer 
entered    Port    Arthur,    three    battleships,    ten    cruisers    and    nine    tor- 


CHAP.  V.]  BLOCKADE.  731 

pedo  boats  and  destroyers,  and  on  the  day  of  capture,  i.  e.,  of  the  19th 
of  the  12th  month,  nine  destroyers,  eight  cruisers  and  one  battleship 
were  cruising  at  sea  about  10  nautical  miles  off  the  coast,  besides  other 
ships  cruising  still  farther  off  on  blockade  duty.  Thus  the  blockade 
having  obviously  been  effectively  maintained,  it  cannot  be  said  that  this 
steamer  did  not  run  any  risk  in  getting  into  Port  Arthur;  she  could 
only  have  passed  the  blockade  line  by  escaping  the  attention  of  the 
blockading  ships.  Therefore,  the  appellant's  assertion  that  the  block- 
ade of  the  southern  coast  of  Liaotung  Peninsula  was  not  effective,  is 
in  contradiction  with  the  real  fact  and  the  5th  point  of  appeal  is 
groundless.  It  is  admitted  by  International  Law  that  a  ship,  which 
has  run  a  blockade,  is  liable  to  confiscation,  provided  she  is  captured 
during  the  continuance  of  that  blockade,  no  matter  whether  the  en- 
forcement of  the  blockade  is  continued  at  the  time  of  her  examination 
at  prize  court  or  not,  so  the  6th  point  of  appeal  is  also  groundless. 

For  the  above  reasons,  the  decision  is  given  as  follows: 

The  appeal  of  this  case  shall  be  dismissed. 

Given  this   11th  day  of  the  7th  month  in  the  38th  year  of  Meiji, 
at  the  Higher  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Higher  Prize  Court. 


CHAPTER   VI. 
UNNEUTRAL    SERVICES. 

Case  I.     The  Industrie. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Dec.  16,  1905. 

Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  was  given,  on  the  13th  of  the  7th  month  of 
the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court  in  the  case  of  the 
German  steamship  Industrie: 

Decision. 
Petitioner — Jurgen    Block,    German    merchant;     Tsingtao, 

China. 
Advocate — T.    Ishibashi,    Counsellor    at    Law,    41,    Togiya 
Machi,  Nagasaki. 

In  the  case  of  the  German  steamship  Industrie,  decision  has  been 
given  as  follows: 

Text  of  Decision. 

The  steamship  Industrie  is  hereby  confiscated. 

Facts  and  Grounds  of  Decision. 

The  steamship  Industrie  is  the  property  of  the  petitioner,  and  is 
a  vessel  employed  as  a  salvage  vessel  and  tug.  She  flies  the  German 
flag,  with  her  usual  home  port  at  Hamburg,  Germany.  On  the  8th  of 
the  2nd  month  of  the  38th  year  of  Meiji,  R.  R.  Macdelmidt  (?),  an 
American,  proprietor  of  the  Chefoo  Daily  News,  residing  at  Chefoo, 
China,  chartered  the  vessel  at  Shanghai  for  three  months,  at  the  rate 
of  1500  taels,  Shanghai  silver,  a  month,  to  employ  her  as  a  reporting 
vessel;  and  one  Adolph  Bannier  (?),  a  German,  was  on  board  the  ves- 
sel as  war  reporter  with  a  monthly  salary  of  400  dollars.  With  the 
object  of  collecting  information  of  the  movements  of  the  Japanese 
Fleet  and  reporting  it  to  the  Russian  Government  through  Macdel- 
midt, the  vessel  left  Shanghai  on  the  19th  of  the  same  month  and 
proceeded  toward  Tsushima  ria  the  Saddle  Islands,  arriving  at  40 
miles  southwest  of  the  island,  on  the  3rd  of  the  3rd  month  (3  March. 
1905).     The  vessel  then  returned  to  Shanghai,  arriving  there  on  the 

732 


CHAP.  VI.]  UNNEUTRAL   SERVICES.  733 

13th.  On  the  15th  she  again  left  Shanghai  and  arrived  at  North 
Scene  Island,  Korea,  on  the  23rd.  From  the  23rd  to  the  27th  (March, 
1905),  the  vessel  reconnoitred  Quelpart  and  Anderson  Island  and  the 
adjacent  seas,  and  on  the  latter  day,  at  dawn,  she  proceeded  to  Kadock 
Island.  There  she  found  Japanese  men-of-war  assembled  about  5  miles 
to  the  eastward.  After  ascertaining  their  types,  names,  etc.,  she  pro- 
ceeded to  Fusan,.  with  the  object  of  cabling  the  information  to  Mac- 
delmidt.  On  her  way  to  Fusan,  the  same  day  (27  March,  1905),  at 
3  p.m.,  she  was  captured  by  the  Japanese  man-of-war  Kasuga,  2  miles 
south  of  Kadock  Island,  under  the  suspicion  that  she  was  engaged  in 
collecting  intelligence,  with  the  object  of  benefiting  the  enemy. 

The  above  facts  are  clear  from  the  statement  submitted  by  Lieu- 
tenant S.  Oimikado,  representative  of  the  captain  of  the  Kasuga;  from 
the  testimony  given  by  Uddine  (?)  and  Schuested  (?),  the  master  and 
first  mate  of  the  Industrie,  and  by  Bannier,  the  reporter;  and  from  the 
certificate  of  the  ship's  nationality,  the  contract  of  the  sale  of  the 
vessel,  the  log-book,  etc. 

The  purport  of  the  plea  of  the  petitioner's  advocate  is  as  follows : 
According  to  the  opinion  of  the  Public  Procurator,  Macdelmidt,  the 
proprietor  of  the  Chefoo  Daily  News,  a  newspaper  published  under  the 
protection  of  the  Russian  Government,  chartered  this  ship  to  send 
her  to  the  base  of  the  Japanese  fleet,  under  the  direction  of  the  re- 
porter Bannier,  with  the  object  of  collecting  and  reporting  military 
intelligence  to  benefit  of  the  enemy,  but  this  is  not  fact.  The  reasons 
are  as  follows: 

(1)  The  advocate  denies  that  the  Daily  News  is  published  under 
the   protection   of  the  Russian   Government,   as   that   is   not  the   fact; 

(2)  The  reporter,  Bannier,  is  a  temporary  employee  of  Macdel- 
midt, and  is  nothing  more  than  an  ordinary  newspaper  reporter.  As 
such,  he  was  observing,  impartially,  the  movements  of  both  the  Japa- 
nese and  the  Russian  fleets,  but  he  never  watched  the  actions  of  the 
Japanese  fleet,  as  a  spy  of  Russia; 

(3)  The  owner  of  the  ship  did  not  let  her,  to  be  used  as  a  scout- 
ing vessel  in  the  interest  of  Russia.  Moreover,  allegation  of  the  Pub- 
lic Procurator,  that  there  was  concluded  between  the  owner  and  the 
Russian  Major  General  Dessino  a  contract  of  the  sale  of  the  ship,  is 
groundless.  That  no  such  contract  was  concluded,  may  be  inferred 
from  several  letters  sent  and  received  between  the  petitioner  and  Mac- 
delmidt since  the  13th  of  the  1st  month  of  this  year,  and  from  the 
letter  of  the  Kawasaki  Dockyard,  Kobe,  dated  the  34th  of  the  3rd 
month  of  this  year; 

(4)  Newspaper  correspondence  is  a  work  of  public  interest,  and  is 
not  an  unneutral  act: 


734  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

(5)  Neutral  ships  should  not  be  captured  indiscreetly,  except  in 
cases  of  illegal  transportation  or  blockade  running.  And  in  order  to 
confiscate  a  neutral  vessel,  as  guilty  of  an  act  benefiting  the  enemy, 
such  an  act  must  be  an  accomplished  fact  and  there  must  be  evidence 
to  prove  it.  In  the  case  under  consideration,  there  is  no  such  evidence. 
In  a  word,  the  ship  under  consideration  is  a  harmless  neutral  vessel, 
and  the  advocate  requests  her  release. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  as  follows: 
The  ship  under  consideration  is  ostensibly  an  ordinary  reporting 
vessel  of  a  newspaper,  but  in  reality,  by  a  secret  agreement  between 
the  Russian  Government  and  Macdelmidt,  she  was  engaged  to  scout 
and  report  the  movements  of  the  Japanese  fleet.  Therefore,  she  should 
be   confiscated. 

After  due  consideration  the  Court  concludes  as  follows: 
It  is  an  unneutral  act  for  a  neutral  person  to  watch  one  of  the 
belligerents  and  report  military  secrets  to  the  other,  and  International 
Law  allows  confiscation  of  vessels  employed  for  such  a  purpose.  The 
advocate  alleges  that  the  vessel  under  consideration  was  a  reporting 
vessel  of  the  Chefoo  Daily  News,  that  the  newspaper  was  not  under 
the  protection  of  the  Russian  Government,  and  that  the  reporter  on 
board  the  vessel  was  an  ordinary  newspaper  reporter,  who  watched  im- 
partially the  movements  of  both  the  Japanese  amd  the  Russian  fleets. 
But  the  Chefoo  Daily  News  is  a  small  paper  that  appeared  about  the 
time  of  the  outbreak  of  the  Japanese-Russian  War,  having  no  means 
to  send  out  its  own  reporting  vessel.  It  is  also  a  conspicuous  fact, 
that  the  newspaper  advocated  the  Russian  cause  and  wilfully  pub- 
lished in  its  columns,  anything  disadvantageous  to  Japan.  Moreover, 
in  the  record  of  the  3rd  examination,  in  answer  to  the  question  of  the 
councillor  in  charge,  whether  he  did  not  think  it  true  that  the  Daily 
News  was  the  organ  of  the  Russian  Government,  Bannier  said,  "  I  did 
not  know  that  before.  But  your  question  makes  me  think  it  is  pos- 
sible that  the  Daily  News  is  receiving  the  protection  of  the  Russian 
Government,  as  it  is  a  small  paper.  At  any  rate,  I  cannot  affirm  that 
the  newspaper  is  not  receiving  protection  from  the  Russian  Govern- 
ment." He  also  answered  to  another  question  as  follows :  "  I  think 
that  my  reports  will  be  transmitted  to  the  Russian  Consul  at  Chefoo 
or  Shanghai  and  thence  to  the  Russian  Government.  I  did  not  know 
that  when  I  left  Shanghai,  and  my  intention  was  to  report  all  that 
I  saw  not  only  of  the  Japanese  but  also  of  the  Russian  fleet.  I  think, 
therefore,  all  my  reports  give  benefit  to  the  Russian  Government." 
From  these  statements  of  the  reporter,  Bannier,  from  similar  state- 
ments of  Uddine,  master  of  the  vessel,  and  from  the  fact  that  there 
was  no  vessel  of  the  Russian  fleet  to  be  seen  in  the  Eastern  seas  at 


CHAP.  VI.]  UNNEUTRAL  SERVICES.  735 

that  time,  it  is  proper  to  conclude  that  the  Russian  Government,  tak- 
ing advantage  of  the  Chefoo  Daily  News  being  a  neutral  paper,  sub- 
sidised it  and  sent  the  vessel,  under  the  pretence  of  making  war  reports, 
to  watch  the  Japanese  fleet  and  to  report  military  secrets,  and  that 
the  petitioner  knew  of  the  scheme.  In  a  word,  it  must  be  considered 
that  this  vessel  was  employed  to  watch  the  movements  of  the  Japa- 
nese fleet  and  to  report  them  to  the  enemy.  Consequently,  the  vessel 
should  be  confiscated.  As  to  the  other  points  of  the  advocate's  plea, 
there  is  no  need  to  give  any  explanation.  The  decision  as  stated  in  the 
text  has,  therefore,  been  given. 

Given  this  13th  of  the  7th  month  of  the  38th  year  of  Meiji,  at  the 
Sasebo  Prize  Court,  the  Public  Procurator,  S.  Yamamoto,  taking  part. 
(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected  for 
the  same  reasons  held  by  the  Sasebo  Prize  Court. 

Case  II.      The  Quang-nam. 

Decision  published  in  the  Official  Gazette,  Tokyo,  of  March  22,  190G. 

Decision  of  the  Sasebo  Prize  Court. 

The  following  decision  was  given  on  the  28th  day  of  the  11th  month 
of  the  38th  year  of  Meiji,  by  the  Sasebo  Prize  Court  in  the  case  of 
the  French  steamship  Quang-nam. 

Petition  No.   1. 

Decision. 
Petitioners — Motte   &   Co.,   Saigon,   Cochin   China,    French 

territory. 
Representative — Mark  Motte,   French  subject,  residing  in 

the  above  place. 
Attorney — J.    Magaki,    Counsellor    at    Law,    17,    Akefune 
Cho,  Shiba  Ku,  Tokyo. 

In  the  case  of  the  French  steamship  Quang-nam,  decision  is  given 
as  follows: 

Text  of  Decision. 
This  petition  is  hereby  rejected. 

Facts  and  Reasons. 
The  steamship  Quang-nam,  being  the  property  of  the  China  Coast 
Voyage  Company,  established  at  Paris,  France,  is  engaged  in  the  trans- 


736  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

portation  of  cargo,  having  Saigon,  Cochin  China,  as  her  home  port, 
and  flying  the  French  flag.  During  the  4th  month  of  the  38th  year 
of  Meiji,  she  took  on  board  at  Saigon,  800  cases  of  spirits,  and  left 
that  place  on  the  23rd  of  that  month.  Calling  at  Kamranh  Bay  on 
the  following  day,  the  24th,  she  delivered  the  above  cargo  to  the  Rus- 
sian Second  Pacific  Squadron,  which  was  lying  at  anchor  there,  and 
leaving  the  bay  on  the  26th,  she  sailed  to  Shanghai  by  way  of  Hong- 
kong. At  Shanghai,  she  took  no  cargo,  except  130  tons  of  Cardiff  coal 
for  her  own  use,  and  left  there  on  the  12th  of  the  following  month, 
pretending  to  be  bound  to  Manila.  Shaping  her  course  between  For- 
mosa and  the  Pascadores,  and  then  turning  aside,  she  ran  into  Hatto 
Channel,  and  was  captured  by  the  Japanese  man-of-war  Bingo  Maru 
on  the  16th  of  the  same  month  (May,  1905)  to  the  northward  of  Kosei 
Island,  as  a  ship  engaged  in  the  scouting  service  of  the  enemy. 

The  above  facts  are  proved  by  the  written  statement  of  Captain 
S.  Arikawa  of  the  Bingo  Maru,  by  the  report  of  the  visit  made  by 
Lieutenant  K.  Yasumura,  by  the  written  report  of  Assistant  Engineer 
M.  Tsubouchi  on  investigation  of  the  engine  room  of  the  Quang-nam, 
by  the  affidavit  of  Paul  Buisoo  (?),  master,  Phillip  A.  Paory  (?),  first 
officer,  Lieutenant  Arnest  Carochy  (  ?),  A.  Castalogy  (  ?),  first  engineer, 
Charl  E.  Pealamiss  (  ?),  second  engineer,  Leopold  Brazy  (?),  third  en- 
gineer, all  of  the  Quang-nam,  by  the  certificate  of  the  ship's  nation- 
ality, the  ship's  log,  and  the  engineer's  log. 

The  main  points  of  the  statements  of  the  attorney  for  the  peti- 
tioners are: 

The  steamship  Quang-nam,  being  the  property  of  the  China  Coast 
Voyage  Company,  located  at  Paris,  France,  runs  between  Saigon,  Ma- 
nila, Philippine  Islands,  Iloilo  and  Cebu.  According  to  a  charter  en- 
tered into  between  the  petitioners  and  the  above  company  for  the  use 
of  this  ship  in  the  transportation  of  goods,  she  was  loaded  at  Saigon 
in  the  4th  month  of  1905,  with  a  cargo  consisting  of  cases  of  spirits 
and  proceeded  to  Kamranh  Bay,  where  she  delivered  her  cargo.  On 
her  voyage  from  Kamranh  Bay  to  Manila  by  way  of  Hongkong  and 
Shanghai,  her  engine  was  damaged,  so  she  steamed  into  the  Pescadore 
Channel  with  the  object  of  finding  harbour  or  some  other  ship  to  get 
assistance  for  repairs.  She  wTas,  however,  captured  by  the  Japanese 
man-of-war  on  the  16th  of  the  5th  month  in  the  above  channel.  This 
ship  is  a  neutral  ship,  and  both  the  petitioners  and  the  charterers  are 
neutral  subjects.  Besides  130  tons  of  coal  loaded  at  Shanghai,  she 
took  on  board  no  contraband  person  or  goods  or  letter,  and  the  master 
and  others  did  not  know  that  the  vicinity  of  the  Pescadore  Islands 
was  the  zone  over  which  the  "  Protected  Sea  Area "  had  been  pro- 
claimed.    Hence,  this  ship  should  not  have  been  captured.     The  writ- 


CHAP.  VI.]  UNNEUTRAL  SERVICES.  737 

ten  opinion  of  the  Public  Procurator  shows  that  he  regarded  this  ship 
as  employed  by  the  Russian  Government  and  reconnoitring  the  de- 
fences of  Japan  and  the  movements  of  the  Japanese  fleet,  on  behalf  of 
the  enemy.  But  the  master  and  other  officers  of  this  ship  have  hither- 
to served  in  merchant  ships  only,  and  the  crew  are  all  manual  la- 
bourers, so  it  is  evident  that  none  of  them  was  competent  for  such 
service  as  military  reconnoitring.  The  statements  of  the  master,  first 
officer,  and  engineers,  do  not  agree  with  each  other  in  main  points, 
but  the  fact  that  the  engine  of  this  ship  was  damaged  on  her  voyage 
from  Shanghai  to  Manila  is  proved  by  a  report  forwarded  by  the 
master  to  the  French  Consul  at  Nagasaki.  Section  5  of  Art.  XXXVII. 
of  the  Japanese  Regulations  Governing  Captures  at  Sea  includes: 
"  Vessels  that  engage  in  scouting  or  carrying  information  in  the  in- 
terest of  the  enemy,  or  are  deemed  clearly  guilty  of  any  other  act 
to  assist  the  enemy."  According  to  the  above,  it  is  evident  that  there 
must  be  clear  grounds  on  which  to  charge  a  ship  with  having  acted 
in  the  interest  of  the  enemy.  Art.  XXIII.  of  the  International  Regu- 
lations Governing  Captures  at  Sea,  of  the  Institute  of  .International 
Law,  held  at  Turin  in  1882,  regulated  the  capture  of  neutral  ships  and 
said,  "  when  a  neutral  ship  has  participated  or  intended  to  participate 
in  war,  she  may  be  confiscated."  In  the  present  case,  it  has  not  been 
ascertained  that  the  master  really  acted  with  the  object  of  benefiting 
the  enemy.  Therefore,  this  ship  should  be  released,  as  she  cannot  be 
punished  under  above  cited  regulations. 

The  main  points  of  the  opinion  of  the  Public  Procurator  are: 
The  charter  party  produced  by  the  petitioners,  being  a  private 
document  which  might  be  prepared  at  any  time,  cannot  be  trusted. 
Consequently,  the  petitioners  are  not  parties  entitled  to  bring  this  ac- 
tion, therefore,  this  petition  should  be  rejected.  On  the  other  hand,  it 
may  be  inferred  that  this  ship  was  chartered  by  the  Russian  Govern- 
ment and  was  engaged  in  reconnoitring  the  defences  of  Japan  and  the 
movements  of  the  Japanese  fleet,  for  the  benefit  of  the  enemy.  Hence, 
she  is  liable  to  confiscation. 

After  due  consideration,  the  Court  concludes  as  follows: 
The  attorney  for  the  petitioners  affirmed  that  this  ship  was  char- 
tered by  the  petitioners,  Motte  &  Co.,  from  the  China  Coast  Voyage 
Company,  and  to  prove  his  affirmation  he  produced  a  charter  party  be- 
tween Motte  and  Ascory  (  ? ) ,  the  general  agent  at  Saigon  of  the  China 
Coast  Voyage  Company,  and  also  referred  to  the  power  of  attorney 
given  him.  But  the  charter  party  was  not  found  on  board  the  Quang- 
nam  at  the  time  of  capture,  and  being  a  private  document  which 
might  be  prepared  at  any  time  by  the  signing  parties  is  not  trust- 
worthy.    The  power  of  attorney  proves  that  Motte  made  a  statement 


738  NEW  CASES  ON   PRIZE   LAW.  [PART  V. 

in  the  presence  of  a  notary,  but  it  is  no  proof  of  the  truthfulness  of 
that  statement.  For  the  above  reasons,  these  papers  cannot  be  ac- 
cepted. Besides  them,  there  is  nothing  to  show  that  the  .petitioners  had 
any  interest  in  this  case.  Hence,  this  petition  should  be  rejected.  Con- 
sidering the  fact  that  this  ship  took  on  board  at  Saigon,  French  ter- 
ritory, on  the  22nd  of  the  4th  month  of  the  38th  year  of  Meiji,  800 
cases  of  spirits,  and  sailing  to  Kamranh  Bay,  without  any  manifest 
or  charter  party,  delivered  the  above  cargo  to  the  Russian  Second 
Pacific  Squadron  lying  at  anchor  there,  and  considering  the  statement 
of  the  master  in  his  affidavit :  "  I  think  the  Cardiff  coal  loaded  in  this 
ship  came  from  the  Russian  coal  depot."  "  This  ship  was  chartered 
by  the  Russian  Government,"  there  is  no  doubt  that  this  ship  was 
chartered  by  the  Russian  Government.  That  she  purposely  took  a  dif- 
ficult passage  between  Formosa  and  the  Pescadores  under  the  pretext 
of  going  to  Manila,  and  ran  into  Hatto  Channel,  was  evidently  for  the 
purpose  of  reconnoitring  the  defences  near  those  islands,  and  the 
movements  of  the  Japanese  Squadron.  Moreover,  the  fact  that  she 
took  on  board,  at  Saigon,  Cardiff  coal  which  she  never  before  consumed, 
that  she  sailed  from  Kamranh  Bay  to  Shanghai  by  way  of  Hongkong, 
without  any  cargo,  and  that,  at  Shanghai,  no  cargo  was  loaded,  but 
130  tons  of  Cardiff  coal  were  taken  on  board  when  she  had  more  than 
sufficient  coal  for  her  trip  to  Manila;  all  these  facts  must  be  regarded 
as  means  taken  in  order  to  accomplish  the  service  of  reconnoitring. 
When  a  ship,  though  neutral,  has  engaged  in  reconnoitring  defences 
and  the  movements  of  a  squadron  for  the  benefit  of  the  enemy,  as  this 
ship  did,  her  confiscation  is  allowed  by  International  Law,  For  the 
above  reasons,  this  ship  should  be  confiscated. 

Therefore,  the  decision  is  given,  as  in  the  text. 

Given  this  28th  day  of  the  11th  month  of  the  38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court,  the  Public  Procurator,  C.  Minakami,  taking 
part. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Appeal  carried  to  the  Higher  Prize  Court,  but  rejected  for 
the  same  reasons  held  hy  the  Sasebo  Prize  Court. 


CHAPTER  VII. 
RELEASED  VESSELS. 

Sect.  I.     Vessels  Released  by  the  Decisions  of  the  Japanese 
Prize  Courts. 

Case  I.     The  Eastry, 
Published  in  the  Official  Gazette,  Tokyo,  on  Feb.  16,  1905. 
Decision  of  the  Yokosuka  Prize  Court. 
The  following  decision  was  given  on  the  12th  day,  2nd  month,  38th 
year  of  Meiji,  by  the  Yokosuka  Prize  Court,  in  the  case  of  the  British 
steamship    Eastry. 

No.  IX. 

Decision. 
The  case  of  the  steamship  Eastry,  captured  by  the  Japanese  man- 
of-war  Matsushima  in  the  Strait  of  Tsugaru  on  the  7th  of  the   2nd 
month  of  the  38th  year  of  Meiji  at  3  p.m.,  has  been  tried  and  the  fol- 
lowing decision  given: 

Text  of  the  Decision. 
The  British  steamship  Eastry  and  3725  tons  of  coal  on  board  the 
ship  are  hereby  released. 

Facts  and  the  Grounds  of  the  Decision* 
The  steamship  under  consideration  is  the  property  of  an  English- 
man, William  John  Schvierite  (?),  residing  at  West  Hartlepool,  Dur- 
ham, England,  and  is  registered  at  the  same  port.  She  is  a  steel  steam- 
ship of  1924.24  tons,  registered.  The  ship  took  in  Cardiff  coal,  and 
under  false  papers  transported  the  coal  to  Vladivostock  in  the  latter 
part  of  the  11th  month  of  the  37th  year  of  Meiji.  On  her  way  back 
from  that  port,  she  was  visited  by  the  Japanese  man-of-war  Tsushima, 
on  the  8th  of  the  12th  month  the  same  year,  in  the  neighbourhood  of 
the  Straits  of  Tsushima.  She  then  proceeded  to  Hongkong  via  Moji 
and  Wusung.  While  staying  at  Hongkong  she  was  chartered,  on  the 
20th  of  the  1st  month  of  the  38th  year  of  Meiji,  by  Dodwell  &  Co. 

739 


740  NEW  CASES  ON  PRIZE  LAW.  [PART  V. 

of  Yokohama,  with  the  object  of  making  a  voyage  from  Muroran  to 
Singapore.  She  left  Hongkong  on  the  21st  of  the  same  month  and 
arrived  at  Muroran  on  the  1st  of  the  2nd  month. 

At  Muroran  she  took  in  3725  tons  of  "  Yubari "  coal,  consigned  by 
the  Hokkaido  Colliery  Railroad  Company  to  Peterson  Simons  &  Co. 
of  Singapore,  and  560  tons  of  the  same  coal  for  her  own  use,  and  sailed 
for  Singapore  on  the  7  th  of  the  2nd  month  at  8  a.m.  The  same  day 
at  3  p.m.,  she  was  visited  by  the  Japanese  man-of-war  Matsushima  in 
the  Strait  of  Tsugaru,  in  N.  Lat.  41°  43'  and  E.  Long.  141°  5',  and 
was  seized  under  the  suspicion  that  she  was  carrying  contraband  of 
war  to  Vladivostock. 

The  above  facts  are  clear  from  the  statement  concerning  the  cap- 
tured ship  Eastry,  submitted  by  Lieutenant  M.  Taira,  I.  J.  N.,  -repre- 
sentative of  the  Captain  of  the  Japanese  man-of-war  Matsushima;  from 
the  testimony  given  by  W.  T.  Holsfield,  master  of  the  ship;  by  O.  H. 
Poole,  of  Dodwell  &  Co.,  Yokohama;  from  the  telegraphic  answer  of  the 
Captain  of  the  Japanese  man-of-war  Matsushima,  addressed  to  the 
Councillor  in  charge  of  the  case;  from  the  certificate  of  nationality  of 
the  Eastry;  ship's  journal;  charter  party,  etc. 

After  due  consideration  the  Court  concludes  as  follows:  The  ship 
had  once  forged  her  papers  and  transported  contraband  of  war  to 
Vladivostock.  Moreover,  she  attempted  this  time  to  pass  the  Strait 
of  Tsugaru,  avoiding  the  central  routes  and  taking  one  near  the  coast. 
Thus  the  captain  of  the  Matsushima  seized  her,  inferring  that  she  had 
forged  her  papers  and  was  attempting  to  transport  contraband  of 
war  again  to  Vladivostock  under  the  pretence  of  going  to  Singapore. 
The  examination  made  by  this  Court  of  the  papers  found  in  the  ship 
and  of  the  parties  concerned,  however,  has  disclosed  the  facts  that 
the  ship  was  chartered  this  time  by  different  persons  from  the  ones 
who  chartered  her  when  she  undertook  the  voyage  to  Vladivostock; 
that  the  coal  which  she  took  in  was  consigned  by  the  Hokkaido  Col- 
liery Railroad  Co.  to  Peterson  Simons  &  Co.  of  Singapore;  and  that  her 
destination  was  Singapore.  Thus  she  cannot  be  considered  this  time 
as  engaged  in  the  transportation  of  contraband  of  war.  The  Court, 
therefore,  has  decided  as  stated  in  the  text. 

Given  this  12th  day  of  the  2nd  month  of  the  38th  year  of  Meiji 
at  the  Yokosuka  Prize  Court,  after  hearing  the  opinion  of  the  Public 
Procurators  of  the   Court. 

(Signed)     The  President  and  Councillobs  op  the 
Yokosuka  Prize  Court. 


CHAP.  VII.]  RELEASED   VESSELS.  741 

Case  II.     The  Rincluden. 

Decision  published  in  the  Official  Gazette,  Tokyo,  of  June  15,  1905. 

Decision  of  the  Saselo  Prize  Court. 
The  following  decision  was  given  on  the  21st  of  the  5th  month 
of  the   38th  year  of  Meiji,   by   the   Sasebo   Prize  Court,  in  the  case 
of  the  British  steamship  Rincluden  and  her  cargo. 

Decision. 
In  the  case  of  the  British  steamship  Rincluden  and  cargo,  the  fol- 
lowing decision  has   been  given,   after   examining  the  opinion  of  the 
Public  Procurator,  S.  Yamamoto: 

Text   of  the  Decision. 
The  steamship  Rincluden  and  her  cargo  are  hereby  released. 

Facts  and  Grounds  of  the  Decision. 

The  steamship  Rincluden  is  the  property  of  the  Rincluden  Steam- 
ship Company,  Manchester,  England,  flying  the  British  flag,  and  em- 
ployed for  the  transportation  of  goods.  On  the  11th  of  the  1st  month 
of  the  36th  year  of  Meiji,  the  master  of  the  ship  being  authorised 
by  the  owner,  contracted  with  the  crew  at  Savona,  Italy,  to  take 
in  a  cargo  at  a  port  of  the  Black  Sea,  and  to  transport  it  to  Vladivos- 
tock,  Russia.  The  ship  left  the  port  on  the  same  day,  and  arrived 
at  Nicolaiev  on  the  23rd  the  same  month.  She  took  in  at  Nicolaiev 
8,078,272  pounds,  that  is,  about  3607  tons  of  barley.  With  a  bill 
of  lading,  in  which  the  consignor  was  put  as  P.  Hosner  and  the  con- 
signee "  to  order "  at  Tsingtao,  China,  the  ship  left  Nicolaiev  on  the 
26th  of  the  same  month,  and  arrived  at  Woosung,  China,  on  the  12th 
of  the  6th  month,  via  Constantinople,  Port  Said,  and  Labuan.  At 
Woosung  the  master  received  an  order  from  the  owner  directing  him 
to  Strachan  &  Co.,  Kobe.  Next  day,  the  13th,  the  ship  left  port, 
and  on  route  to  Kobe.  On  the  16th  of  the  same  month  at  9.30  a.m. 
she  was  captured  by  the  Japanese  man-of-war  Sado  Maru  in  N.  lat. 
33°  10'  and  E.  long.  127°  37'  under  the  suspicion  that  she  was  trans- 
porting contraband  of  war. 

The  above  facts  are  clear  from  the  statement  submitted  by  Junior 
Lieutenant  T.  Kimura,  representative  of  the  captain  of  the  Sado 
Maru;  from  the  testimony  given  by  C.  H.  Laying  and  T.  G.  Sam- 
bridge,  master  and  1st  mate  of  the  Rincluden,  and  from  the  certificate 
of  the  ship's  nationality,  log-book,  ship's  journal,  bill  of  lading, 
freight  list,  clearance  from  Shanghai,  telegram  of  the  owner  addressed 


742  NEW   CASES  ON   PRIZE   LAW.  [PART  V. 

to  the  master,  letter  of  Dodwell  &  Co.,  Shanghai,  addressed  to  the 
master,  and  telegrams  of  Strachan  &  Co.,  Yokohama,  addressed  to 
this  Court. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  as  follows: 
The  ship  under  consideration  took  in  a  cargo  of  barley,  and  left 
port  with  the  object  of  proceeding  to  Vladivostock,  and  having  been 
captured  under  the  suspicion  of  carrying  contraband  she  must  submit. 
But,  as  the  result  of  the  examination  of  this  Court,  it  has  become 
clear  that  on  the  way  she  had  altered  her  destination,  and  was  mak- 
ing for  Kobe.  She  was  not,  therefore,  transporting  contraband  of 
war,  and  ought  to  be  immediately  released. 

After  due  consideration,  the  Court  concludes  as  follows: 
At  first  the  ship  intended,  under  the  contracts  entered  into  by  the 
master  and  crew,  to  take  barley  to  Vladivostock,  a  Russian  naval 
base,  so  that  it  is  very  clear  that  her  first  object  was  the  transporta- 
tion of  contraband.  Now  it  is  a  very  common  practice  with  vessels 
engaged  in  illegal  voyages  to  falsify  in  their  papers  the  true  destina- 
tion in  order  to  escape  capture.  In  the  case  under  consideration, 
although  it  is  clearly  stated  in  the  ship's  journal,  clearance  from 
Shanghai,  and  letters  and  telegrams  addressed  to  the  master,  that 
she  was  bound  to  Kobe,  it  is  not  conclusive  enough  to  establish 
that  she  had  altered  her  first  object.  The  action  of  the  Sado  Maru 
in  capturing  the  ship  was  therefore  proper.  But,  according  to  the 
investigation  made  by  this  Court,  there  can  be  no  doubt  that  the 
ship  had  actually  abandoned  her  first  object  of  going  to  Vladivostock, 
and  was  steaming  for  Kobe  to  deliver  the  cargo  to  Strachan  &  Co. 
The  ship  and  her  cargo  should  therefore  be  released,  although  her 
capture  was  lawful,  and  the  decision,  as  related  in  the  text,  has  been 
given. 

Given  this  21st  day  of  the  5th  month  of  the   38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasero  Prize  Court. 


Case  III.    The  Sishan. 
Decision  published  in  the  Official  Gazette,  Tokyo,  of  Nov.  10,  1904. 

Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  has   been  given   by  the   Sasebo   Prize  Court 
on  the  British  steamship   Sishan  and  her  cargo  on  the  26th  of  the 
10th  month  of  the  37th  year  of  Meiji. 


CHAP.  VII.]  RELEASED   VESSELS.  743 

Decision. 

In  the  case  of  the  capture  of  the  British  steamship  Sishan  and 
her  cargo,  the  opinion  of  the  Public  Procurators,  C.  Minakami  and  S. 
Yamamoto,  has  been  examined,  and  the  following  decision  given: 

Text   of  the  Decision. 
The  steamship   Sishan  and  her  cargo  are  hereby  released. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamship  Sishan  now  under  consideration,  belongs  to  Sam- 
uel Spitzer,  a  British  subject,  and  is  a  merchantman  registered  at 
Hongkong,  flying  the  British  flag,  and  principally  employed  for  trans- 
portation of  freight.  The  ship  took  in  cows,  sheep,  and  other  articles 
of  provisions,  and  left  Hongkong  the  25th  of  the  9th  month  bound 
for  Newchwang.  She  passed  the  offing  of  Port  Arthur  at  night  and 
entered  Newchwang  on  the  2nd  of  the  10th  month  of  the  37th  year 
of  Meiji. 

She  immediately  tried  to  sell  her  cargo,  and  landed  the  cows  and 
sheep,  which  were,  however,  taken  back  to  the  ship,  she  being  unable 
to  make  a  bargain.  She  then  tried  to  obtain  clearance  for  Chefoo; 
but  before  she  could  procure  the  certificate,  she  was  suspected  by  the 
Imperial  man-of-war  Tsukushi,  which  was  in  port,  visited,  and  cap- 
tured in  the  port  on  the  7th  of  the  10th  month,  on  the  ground  that 
she  was  engaged  in  the  transportation  of  contraband  of  war.  At 
the  time  of  visit  she  did  not  produce  her  papers,  which  were  actually 
in  the  ship,  saying  that  they  were  then  at  the  British  Consulate. 

The  above  facts  are  evident  from  the  statement  of  Lieutenant 
K.  Hara,  representing  the  captain  of  the  man-of-war  Tsukushi;  the 
testimony  given  by  James  Cartridge,  master;  John  Plage  (?),  1st 
engineer;  David  Fotheringham  ( ?),  2nd  engineer,  and  Robert  Bou- 
cher (?),  3rd  engineer,  of  the  steamship  Sishan;  H.  K.  Struve,  a  pas- 
senger, and  Adolph  Spitzer,  witness,  and  the  bills  of  lading  produced 
by  the  witness,  etc. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that  the  ship's 
papers  were  not  kept  in  good  order,  and  unless  there  were  special 
reasons,  the  case  might  properly  be  construed  as  a  continuous  voyage 
in  transportation  of  contraband  of  war.  Her  capture,  therefore,  is 
lawful. 

But,  as  the  result  of  the  examination  in  the  Prize  Court,  facts 
have  been  adduced  showing  that  this  case  cannot  be  considered  as 
a  continuous  voyage  in  transportation  of  contraband  of  war,  and 
consequently  the  ship  and  cargo  should  be  released. 


744  NEW  CASES  ON  PRIZE   LAW.  [PART  V. 

After  giving  due  consideration,  the  Court  concludes  that  the  steam- 
ship under  consideration  was  purchased  by  Adolph  Spitzer,  as  agent 
of  his  nephew,  Samuel  Spitzer,  an  American,  and  he,  Adolph  Spitzer, 
has  full  control  of  her.  The  cargo,  which  consists  of  provisions 
appropriate  for  military  use,  was  purchased  by  the  same  Adolph 
Spitzer  with  the  purpose  of  transporting  the  same  to  any  place 
where  it  would  command  the  highest  price,  and  thus  make  the  great- 
est profit.  He  took  on  board  the  ship  his  countryman,  Struve,  as 
supercargo,  agreeing  to  give  him  part  of  the  profit.  The  ship  left 
Hongkong,  bound  for  Newchwang,  the  said  Adolph  Spitzer  having  full 
power  of  direction  and  surveillance.  At  that  time  Port  Arthur,  being 
strictly  blockaded  by  the  Imperial  Navy,  the  Russian  forces  there 
were  short  of  provisions,  and  rumours  were  rife  at  Hongkong,  Shang- 
hai, etc.,  that  the  object  of  the  ship  was  to  smuggle  the  goods  into 
Port  Arthur,  and  these  rumours  even  found  their  way  into  the  news- 
papers. When  the  ship  arrived  at  Newchwang,  an  attempt  was  made 
to  dispose  of  the  cargo,  but  it  failed.  Then,  on  the  one  hand,  the 
ship  tried  to  clear  from  Newchwang,  pretending  to  go  to  Chefoo, 
which  cannot  be  reached  without  passing  the  offing  of  Port  Arthur. 
On  the  other  hand,  the  supercargo,  Struve,  who  had  full  power  to- 
gether with  the  owner  of  the  cargo,  once  said  at  Bush  Brothers,  his 
agents,  that  the  cargo  would  be  transported  to  Port  Arthur.  The 
1st  mate  of  the  ship,  Chambers,  too,  said  at  the  British  Consulate 
at  Newchwang,  that  the  ship  had  attempted  to  run  the  blockade  on 
her  way  from  Hongkong  to  Newchwang,  but  did  not  succeed,  and 
that  they  were  going  to  make  another  attempt  to  reach  Port  Arthur 
under  the  pretence  that  they  were  going  to  Chefoo.  Now  the  Im- 
perial man-of-war  Tsukushi  sent  an  officer  to  the  ship,  and  at  that 
time  of  his  visit  the  ship  could  not  give  satisfactory  explanations 
for  the  imperfection  of  her  papers,  indefiniteness  of  her  destination, 
and  her  having  as  master  one  who  had  no  power  as  such.  It  was 
therefore  a  proper  course  for  the  Tsukushi  to  capture  the  ship  in 
the  belief  that  she  had  not  abandoned  the  intention,  which  she  had 
since  her  departure  from  Hongkong,  of  smuggling  her  goods  into 
Port  Arthur,  and  that  under  pretence  of  going  to  Chefoo,  she  was 
still  trying  to  achieve  her  first  object.  As  the  result  of  the  exami- 
nation of  this  Prize  Court,  however,  it  is  proper  to  consider  that  the 
ship  at  the  time  of  her  arrival  at  Newchwang  had  abandoned  her  first 
project  of  running  the  blockade  and  smuggling  her  goods  into  Port 
Arthur.  For,  even  if  she  had  had  such  a  project,  she  did  not  carry 
it  out,  and  actually  made  the  voyage  as  mentioned  in  her  papers; 
and  on  her  arrival  at  Newchwang  she  attempted  to  sell  her  goods,  and 
failing  in  this  attempt,  she  tried  to  clear  for  Chefoo.    So  she  cannot  be 


CHAP.  VII.]  RELEASED   VESSELS.  745 

considered  to  have  attempted  to  break  through  the  blockade,  nor  can 
her  case  be  construed  as  a  continuous  voyage  in  the  transportation 
of  contraband  of  war.  Again,  in  trying  to  clear  from  Newchwang 
for  Chefoo,  she  cannot,  on  that  account,  be  held  guilty  of  attempt- 
ing to  violate  the  blockade  or  of  transporting  contraband  of  war; 
for  even  if  she  had  such  intention,  she  did  not  begin  to  carry  it  out. 
Moreover,  concerning  the  imperfection  of  her  papers  and  lack  of 
proper  authority  of  her  master,  satisfactory  explanations  may  be  con- 
sidered as  given.  Therefore,  the  ship  and  cargo  ought  to  be  released, 
notwithstanding  that  her  capture  was  lawful,  and  the  decision  as 
stated  in  the  text  has  been  given. 

Given  this  26th  day  of  the  10th  month  of  the  37th  year  of  Meiji, 
at  the  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


Case  IV.     The  Hsiping. 
Published  in  the  Official  Gazette,  Tokyo,  on  Aug.  11,  1904. 
Decision  of  the  Sasebo  Prize  Court. 

The  following  decision  has  been  given  by  the  Sasebo  Prize  Court 
on  the  steamship  Hsiping  and  her  cargo  on  the  7th  of  the  8th  of  the 
37th  year  of  Meiji. 

Case  No.  XIV. 

Decision. 

In  the  case  of  the  capture  of  the  British  steamship  Hsiping  and  her 
cargo,  the  following  decision  has  been  given  after  examining  the  opin- 
ion of  the  Public  Procurators,  C.  Minakami,  S.  Yamamoto,  and  Y. 
Hayashi : 

Text  of  the  Decision. 

The  steamship  Hsiping  and  the  goods  on  board  of  her,  as  stated  in 
the    annexed   list,   are    hereby   released. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamship  Hsiping  is  a  merchantman  belonging  to  the  Chinese 
Engineering  and  Mining  Company,  a  British  joint-stock  company,  with 
head  office  at  Tientsin,  China,  flies  the  British  flag,  and  her  usual 
home  port  is  Shanghai,  China.  She  is  employed  for  the  transporta- 
tion of  passengers  and  freight.  The  ship  left  Shanghai  on  the  11th 
of  the  7th  month  of  the  37th  year  of  Meiji,  with  a  cargo  consisting 
of  lead,  iron,  silver  coin,  provisions,  drinks,  etc.,  and  on  her  way  via 


746  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

Chin-huang-tao  to  Newchwang,  which  was  at  the  time  occupied  by 
the  Russians,  she  was  captured  by  the  Imperial  man-of-war  Hongkong 
Alaru,  at  sea,  about  6.5  miles  to  the  north  of  Kaimin  Island,  off 
Shantung  Promontory,  China,  on  the  14th  of  the  7th  month  at  8  a.m., 
under  the  suspicion  that  she  was  transporting  contraband  of  war. 

The  above  facts  are  clear  from  the  statement  of  the  captain  of 
the  Hongkong  Maru,  T.  Inoue;  the  report  on  the  visit  and  search  of 
the  steamer  Hsiping,  by  Lieutenant  Y.  Kamura ;  the  testimony  given 
by  R.  McFarlane  (  ?),  and  E.  B.  Hayes,  master  and  1st  mate  of  the 
ship ;  the  testimony  given  by  Pao-ming-chuan,  and  Wu-wei-ming,  officers 
of  the  ship,  and  the  certificate  of  nationality,  bill  of  lading,  and  freight 
list  of  the  ship. 

The  gist  of  the  argument  of  the  Public  Procurator  is  that  the 
ship  under  consideration  having  been  captured  on  the  high  sea,  and 
the  greater  part  of  the  cargo,  such  as  lead,  iron,  provisions,  and 
drinks,  being  contraband  of  war,  since  they  are  destined  to  Newch- 
wang, occupied  by  the  Russians,  the  capture  is  lawful.  However,  the 
ship  and  part  of  her  cargo  should  be  released. 

After  giving  due  consideration,  the  Court  concludes  that  the  Hong- 
kong  Maru  captured  the  ship  at  about  6.5  miles  north  of  Kaimin 
Island,  off  Shantung  Promontory;  so  that  it  is  clear  that  the  capture 
was  made  on  the  high  seas.  Moreover,  the  greater  part  of  the  cargo, 
consisting  of  lead,  silver  coin,  iron,  flour,  spirituous  liquors,  timber, 
etc.,  being  destined  to  Newchwang,  occupied  by  the  Russians,  the 
action  of  the  captain  of  the  Hongkong  Maru  in  capturing  the  ship, 
together  with  her  cargo,  suspecting  them  to  be  destined  for  the  use  of 
the  enemy's  army  and  navy,  is  lawful. 

However,  inasmuch  as  none  of  the  contraband  goods  belong  to 
the  owners  of  the  ship,  the  Chinese  Engineering  and  Mining  Company, 
and  as  there  is  no  circumstance  to  prove  that  any  deceitful  means 
were  used  in  taking  in  the  contraband  of  war,  it  is  proper  to  release 
the  ship.  Moreover,  none  of  the  goods  mentioned  in  the  annexed  list 
being  contraband  of  war  from  their  nature,  and  none  of  them  belong- 
ing to  the  owner  of  goods  considered  to  be  contraband,  it  is  also 
proper  to  release  these  goods.  Therefore,  the  decision,  as  stated  in 
the  text  has  been  given. 

Given  at  the  Sasebo  Prize  Court  this  7th  day  of  the  8th  month 
of  the  37th  year  of  Meiji. 

(Signed)     The  President  and  Councillors  of  the 
Sasero  Prize  Court. 


CHAP.  VII.]  RELEASED  VESSELS.  747 

Case  V.     The  Saxon  Prince. 
Published  in  the  Official  Gazette,  Tokyo,  on  March  22,  1905. 
Decision  of  the  Sasebo  Prize  Court. 
The  following  decision  was  given  on  the  16th  of  the  3rd  month  of 
the  38th  year  of  Meiji  by  the  Sasebo  Prize  Court  in  the  case  of  the 
British  steamship  Saxon  Prince  and  cargo. 

No.  XXX. 

Decision. 

In  the  case  of  the  British  steamship  Saxon  Prince  and  her  cargo, 
the  opinion  of  the  Public  Procurator,  S.  Yamamoto,  has  been  examined 
and  the  following   decision  given: 

Text  of  the  Decision. 
The  British  steamship  Saxon  Prince  and  her  cargo  are  hereby  re- 
leased. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamship  Saxon  Prince  is  the  property  of  the  Prince  Line  Com- 
pany of  Newcastle-on-Tyne,  England.  She  flies  the  British  flag  and 
is  employed  principally  in  the  transportation  of  freight.  She  took  in 
at  New  York,  America,  a  cargo  consisting  of  various  kinds  of  goods 
and  left  port  on  December  11th,  1904.  She  first  went  to  Singapore 
via  St.  Vincent,  a  Portuguese  possession,  and  Durban,  Natal,  a  British 
possession,  and  thence  to  Shanghai.  At  Singapore  and  Shanghai  she 
landed  part  of  her  cargo.  Her  remaining  cargo  was  the  railroad  ma- 
terial destined  to  Muroran,  but  she  obtained  at  the  British  Consulate- 
General  in  Shanghai  a  clearance,  stating  her  cargo  as  ballast  and  her 
destination  as  Muroran.  She  left  Shanghai  at  about  noon  of  the  7th 
of  the  3rd  month,  this  year;  and  on  her  way  to  Muroran,  on  the  10th 
of  the  same  month  at  12.45  a.m.,  she  was  captured  by  the  Japanese 
man-of-war  Akashi  in  N.  Lat.  34°  13'  and  E.  Long.  130°  20'  on  sus- 
picion that  she  was  transporting  contraband  of  war  to  Vladivostock. 

The  above  facts  are  clear  from  the  statement  produced  by  Lieu- 
tenant K.  Miyano,  I.  J.  N.,  representative  of  the  captain  of  the  Akashi ;, 
from  the  testimony  given  by  the  master  of  the  steamship  Saxon  Prince, 
B.  W.  Jamson,  the  first  mate,  J.  R.  Gray,  and  the  chief  engineer,  J. 
R.  Smith;  and  from  the  certificate  of  the  ship's  nationality,  ship's  jour- 
nal, bill  of  lading  and  freight  list,  clearance  issued  by  the  British 
Consulate  General  of  Shanghai,  etc. 

The  purport  of  the  opinion  of  the  Public  Procurator  is  as  follows: 

From  contradictions  in  her  papers  and  the  route  she  took,  the  sus- 


748  NEW  CASES  ON  PRIZE  LAW.  [PART  V. 


picion  that  she  was  attempting  a  clandestine  voyage  to  Vladivostock 
was  very  natural,  and  consequently  her  capture  was  lawful.  But  as 
the  result  of  the  explanation  made  at  this  Court,  it  became  clear  that 
her  destination  was  Muroran.  The  ship  and  her  cargo  should,  there- 
fore, be  released  at  once. 

After  due  consideration  the  Court  concludes  as  follows: 
In  the  bill  of  lading  of  the  railroad  material  found  on  board  at 
the  time  of  ship's  capture  the  destination  of  the  goods  is  put  down 
as  Shanghai;  and  in  the  clearance  issued  by  the  British  Consulate- 
General  at  Shanghai,  the  cargo  is  put  down  as  ballast.  Moreover, 
when  the  ship  was  passing  the  Strait  of  Tsushima  and  was  signalled 
by  the  man-of-war  Akashi  to  stop,  she  did  not  respond  to  the  signal; 
and  she  stopped  only  on  being  fired  upon.  Such  being  the  facts,  the 
action  of  the  Akashi  in  capturing  her,  suspecting  that  she  was  carry- 
ing contraband  of  war  to  Vladivostock  under  the  pretence  of  going 
to  Muroran,  was  proper.  But  as  the  result  of  the  examination  held 
at  this  Court,  the  railroad  material  forming  the  cargo  of  the  ship 
was  to  be  supplied  to  the  Hokkaido  Tanko  Tetsudo  Kwaisha  (the  Hok- 
kaido Colliery  Railroad  Company)  by  the  Mitsui  Bussan  Kwaisha, 
and  was  shipped  for  Muroran  by  the  United  States  Steel  Manufactur- 
ing and  Exporting  Company  of  New  York,  America,  to  the  order  of 
the  Mitsui  Bussan  Kwaisha.  This  is  clear  from  the  contract  between 
the  Hokkaido  Tanko  Tetsudo  Kwaisha  and  Mitsui  Bussan  Kwaisha 
concerning  supply  of  rails  and  appurtenances;  from  the  invoice  re- 
ceived by  the  Mitsui  Bussan  Kwaisha  from  the  United  States  Steel 
Manufacturing  and  Exporting  Company,  the  consignor  of  the  goods 
under  consideration;  from  telegrams  of  the  Hokkaido  Tanko  Tetsudo 
Kwaisha  and  the  American  Trading  Company  of  Yokohama  addressed 
to  this  Court;  and  from  letters  addressed  to  the  master,  by  the  owner 
of  the  ship  and  his  agent,  concerning  the  voyage  to  Mororan.  There- 
fore the  ship  and  cargo  ought  to  be  released,  notwithstanding  that 
their  capture  was  lawful;  and  the  decision  as  stated  in  the  text  has 
been  given. 

Given  this   16th  day  of  the  3rd  month  of  the  38th  year  of  Meiji, 
at  the  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councilloes  of  the 
Sasebo  Pbize  Court. 


CHAP.  VII.]  RELEASED   VESSELS.  749 

Case  VI.    The  Peiping. 
Published  in  the  Official  Gazette,  Tokyo,  on  Aug.  16,  1904. 

Decision  of  the  Sasebo  Prize  Court. 

The  following  decision  has  been  given  by  the  Sasebo  Prize  Court 
on  the  Chinese  steamship  Peiping  and  her  cargo  the  11th  of  the  6th 
month  of  the  37th  year  of  Meiji. 

Case  No.  XV. 

Decision. 

In  the  case  of  the  capture  of  the  Chinese  steamship  Peiping  and 
her  cargo,  the  opinion  of  the  Public  Procurators,  C.  Minakami,  S. 
Yamamoto,  and  Y.  Hayashi,  has  been  examined  and  the  following  de- 
cision given: 

Text  of  the  Decision. 

The  steamship  Peiping  and  all  the  goods  as  mentioned  in  the  ac- 
companying list  forming  part  of  her  cargo  are  hereby  released. 

Facts  and  the  Grounds  of  the  Decision. 

The  steamship  Peiping  is  a  merchantman  flying  the  Chinese  flag, 
belonging  to  the  Chinese  Engineering  and  Mining  Co.,  Ltd.,  a  British 
joint  stock  company  with  head  office  at  Tientsin,  China,  having  her 
usual  home  port  at  Shanghai,  and  employed  for  the  transportation  of 
passengers  and  freight.  The  steamship  left  Shanghai  on  the  15th  of 
7th  month  of  the  37th  year  of  Meiji,  with  a  cargo  consisting  of  iron, 
silver  coin,  provisions,  drinks,  etc.,  besides  the  goods  mentioned  in  the 
annexed  list,  and  on  her  way  to  Newchwang,  which  was  then  occupied 
by  the  Russians,  was  captured  by  the  Japanese  man-of-war  Hongkong 
Maru  in  N.  Lat.  37°  35'  and  E.  Long.  122°  23',  on  the  17th  of  the  7th 
month  at  10  a.m.,  under  the  suspicion  of  her  being  engaged  in  trans- 
portation of  contraband  of  war. 

The  above  facts  are  clear  from  the  statement  of  Lieutenant  T. 
Iwamuro,  representing  the  captain  of  the  Hongkong  Maru;  testimony 
given  by  A.  Mctaggart  (?),  master,  Chang  Liu-yung,  compradore,  and 
H.  C.  Atkinson,  first  mate  of  the  ship;  and  the  memorandum  concern- 
ing the  certificate  of  the  ship's  nationality,  bill  of  lading,  and  freight 
list. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that  the  cap- 
ture having  been  made  on  the  high  sea,  and  the  greater  part  of  the 
cargo  which  consisted  of  iron,  provisions,  drinks,  etc.,  being  contra- 
band of  war,  destined  to  Newchwang  which  was  then  occupied  by  the 


750  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

enemy,  the  capture  was  lawful.     But  the  ship  and  the  goods  mentioned 
in  the  list  annexed  should  be  released. 

After  giving  due  consideration  to  the  case,  the  Court  concludes  that 
the  man-of-war  Hongkong  Maru,  having  seized  the  steamship  under 
consideration  in  N.  Lat.  37°  35'  and  E.  Long.  122°  23',  that  is,  about 
10  miles  northeast  of  Wei-hai-wei,  China,  it  is  clear  that  the  capture 
was  made  on  the  high  sea;  and  as  the  greater  part  of. the  cargo  con- 
sisted of  iron,  silver  coin,  rice,  flour,  various  kinds  of  liquor,  etc., 
destined  to  Newchwang  which  was  then  occupied  by  the  enemy,  the 
act  of  the  Hongkong  Maru  in  capturing  the  steamship  with  her  cargo, 
suspecting  these  goods  to  be  intended  for  the  use  of  the  enemy's  army 
and  navy,  that  is,  contraband  of  war,  was  lawful.  The  ship,  however, 
being  a  neutral  vessel,  carrying  no  contraband  goods  belonging  to  the 
ship's  owner,  and  as  it  cannot  be  said  that  she  used  any  deceitful 
means  in  the  transportation  of  the  contraband,  it  is  proper  to  release 
her.  The  goods  mentioned  in  the  annexed  list,  forming  part  of  her 
cargo,  are  not  contraband,  nor  do  any  of  them  belong  to  the  owner 
of  the  contraband  on  board;  and  consequently  it  is  also  proper  to  re- 
lease them  (the  list  is  omitted).  Under  these  grounds  the  decision  as 
stated  in  the  text  has  been  given. 

Given  this  11th  day  of  the  8th  month  of  the  37th  year  of  Meiji, 
at  the  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


Case  VII.     The  Aggi. 

Published  in  the  Official  Gazette,  Tokyo,  on  July  1,  1904. 

Decision  of  the  Sasebo  Prize  Court. 

The  following  decision  has  been  given  by  the  Sasebo  Prize  Court 
on  the  Norwegian  steamship  Aggi  and  her  cargo  on  the  25th  of  the 
6th  month  of  the  37th  year  of  Meiji. 

Case  No.  XILT. 

Decision. 

In  the  case  of  the  capture  of  the  Norwegian  steamship  Aggi,  deci- 
sion has  been  given  after  examining  the  opinion  of  the  Public  Proc- 
urators, S.  Yamamoto  and  Y.  Hayashi,  as  follows: 

Text  of  the  Decision. 
The  Norwegian  steamship  Aggi  and  her  cargo  are  hereby  released. 


CHAP.  VII.]  RELEASED   VESSELS.  751 


Facts  and  the  Grounds  of  the  Decision. 

The  steamship  Aggi  now  under  consideration  is  a  merchant  vessel 
owned  by  Christian  Mickelsen  &  Co.  (?),  Norway,  flying  the  Nor- 
wegian flag,  whose  usual  home  port  is  Bergen,  Norway.  She  took 
in  at  Barrey,  England,  4021  tons  of  coal  belonging  to  the  same  com- 
pany. She  left  Barrey  on  the  1st  of  the  4th  month  of  the  37th  year 
of  Meiji,  and  arrived  at  Singapore,  British  dominion,  on  the  14th  of 
the  5th  month.  In  compliance  with  an  order  received  from  the  owner 
of  the  ship,  she  left  the  same  port  on  the  same  day,  and  arrived  at 
Shanghai  on  the  25th  of  the  same  month.  While  at  anchor  off 
Gutzlaff  Island  she  received  an  order  from  the  owner  of  the  ship, 
and  left  there  on  the  2nd  of  the  6th  month,  arriving  at  Nagasaki, 
Japan,  on  the  4th  the  same  month.  There  she  was  captured,  on  the 
7th  the  same  month,  by  the  Imperial  man-of-war  Katsuragi,  on  the 
ground  that  her  papers  were  not  in  good  order. 

The  above  facts  are  clear  from  the  statement  of  S.  Sakamoto, 
captain  of  the  Katsuragi;  the  testimony  given  by  Sub-Lieutenant  M. 
Yoshii  and  Halfdasi  Olsen,  master;  Hans  Eidy,  1st  mate,  and  Chris- 
tian O.  Neelsen,  Chief  Engineer  of  the  Aggi,  and  the  certificate  of 
nationality,  certificate  of  tonnage,  and  bill  of  lading  of  the  ship,  and 
the  charter-party. 

The  gist  of  the  opinion  of  the  Public  Procurator  is  that  the  cap- 
ture of  the  ship  now  under  consideration,  on  the  ground  that  her 
papers  were  not  in  good  order,  is  lawful;  but  that  as  there  is  not 
sufficient  evidence  to  show  that  the  coal  on  board  of  her  was  in- 
tended for  the  use  of  the  Russian  Army  or  Navy,  the  coal  cannot  be 
said  to  be  contraband  of  war;  and,  therefore,  the  ship  ought  to  be 
released  with  her  cargo. 

After  giving  due  consideration  to  the  case,  the  Court  concludes  that 
in  the  bill  of  lading,  and  also  the  charter-party,  the  port  of  destina- 
tion is  entered  as  Singapore,  or  according  to  order,  and  the  real  place 
of  her  destination  is  not  clear.  Moreover,  although  the  master  of 
the  ship  produced  the  above  documents  on  demand  of  the  Councillors 
of  the  Court,  he  refused  to  produce  them  to  the  Prize  Officer.  The 
ship  does  not  carry  a  freight  list.  The  act  of  the  captain  of  the 
Katsuragi  in  capturing  her,  on  the  ground  of  irregularity  in  her 
papers  and  the  suspicion  of  her  carrying  contraband  of  war,  is  there- 
fore lawful.  The  ship,  however,  having  arrived  at  Nagasaki  from 
Shanghai  on  the  4th  of  the  6th  month  of  the  37th  year  of  Meiji,  in 
pursuance  of  the  order  of  her  owner,  and  there  being  no  reason  to 
consider  her  as  bound  for  the  enemy's  state,  Russia,  the  coal  on 
board  of  her  cannot  be  considered  as  intended  for  the  enemy's  army 


752  NEW   CASES   ON   PRIZE   LAW.  [PART  V. 

or  navy,  and  consequently  cannot  be  said  to  be  contraband  of  war. 
It  is  proper,  therefore,  to  release  the  ship  with  her  cargo,  and  the 
decision  as  stated  in  the  text  is  given. 

Given  at  the  Sasebo  Prize  Court  this  25th  day  of  the  6th  month 
of  the  37th  year  of  Meiji. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 


Case  VIII.     The  Helmes. 
Published  in  the  Official  Gazette,  Tokyo,  on  March,  15th,  1904. 
Decision  of  the  Sasebo  Prize  Court. 
Decision. 
In  this  case  of  the  capture  of  the  Norwegian  steamship  Helmes,  the 
written  opinion  of  the  Public  Procurator  has  been  examined  and  the 
following  decision  has  been  given: 

Text  of  the  Decision. 
The  Norwegian  steamship  Helmes  and  her  cargo  are  hereby  released. 

The  Facts  and  Grounds  of  the  Decision. 

The  steamship  Helmes  now  under  consideration  is  the  property  of 
the  Bruce  Gold  Chosterood  Company  (?),  of  Norway,  flying  the  Nor- 
wegian flag,  and  is  principally  employed  for  carrying  coal.  She  is 
registered  in  Norway,  which  is  a  neutral  country,  and  her  master, 
engineers,  mates,  and  others  are  all  Norwegians.  She  had  been  char- 
tered by  the  Uriu  Company,  of  Moji,  Japan,  agents  of  the  Ginsburg 
Company,  Russian  subjects;  took  in  2100  tons  of  coal  in  two  days, 
the  4th  and  5th  of  the  2nd  month  of  the  37th  year  of  Meiji,  and 
left  the  port  of  Moji  on  the  6th  of  the  same  month  at  10  a.m.,  not 
knowing  that  war  had  broken  out  on  that  day  between  Japan  and 
Russia,  with  the  intention  of  steering  directly  to  Port  Arthur.  On 
the  way  she  met  Japanese  men-of-war  off  Port  Arthur,  in  latitude 
N.  38°  24'  and  longitude  E.  121°  48',  on  the  9th  of  the  same  month 
at  2  p.m.,  and  being  asked  her  cargo  and  her  usual  home  port,  she 
answered  as  was  stated  in  her  papers.  She  was  then  ordered  to  steer 
to  Nagasaki,  and  obeyed  the  order,  arriving  at  that  port  on  the  13th 
of  the  same  month  at  8  a.m.  Soon  after  her  arrival  at  Nagasaki,  at 
8.45  a.m.,  Lieutenant  Takamatsu,  I.  J.  N.,  Divisional  Commander  of 
the  Nagasaki  Mining  Corps,  boarded  and  captured  her. 

The  above  facts  are  clear  from  the  statement  of  Commander 
Tsukiyama,  I.J.  N.,  commanding  the  Nagasaki  Mining  Corps;  the  re- 
port of  Lieutenant  Takamatsu,  Divisional  Commander  of  the  Mining 


CHAP.  VII.]  RELEASED   VESSELS.  753 

Corps;  the  testimony  given  by  the  master  and  first  mate  of  the  steam- 
ship Helmes;  the  certificate  of  the  ship's  nationality;  the  clearance, 
:  dated  the  5th  day  of  the  2nd  month  of  the  37th  year  of  Meiji;  the 
freight  list,  bill  of  lading,  and  extracts  from  the  ship's  log-book. 

After  due  consideration  of  the  case,  the  coal  taken  in  by  the  steam- 
ship Helmes  in  question,  is  not  from  its  quantity,  destination,  etc., 
for  her  own  use,  but  must  be  construed  as  contraband  of  war  to  be 
supplied  to  the  enemy's  navy  after  arrival  at  Port  Arthur.  But,  ac- 
cording to  rules  recognised  in  modern  International  Law,  a  neutral 
ship  and  her  cargo  are  not  liable  to  capture,  even  if  that  cargo  is 
contraband  of  war,  if  the  ship  does  not  know  the  fact  of  the  opening 
of  hostilities.  This  is  no  more  than  the  enforcement  of  the  principle 
that  the  duty  of  neutrality  originates  with  the  knowledge  (of  the 
fact)  of  the  opening  of  hostilities.  In  the  case  of  the  steamship 
Helmes  now  under  consideration,  there  is  no  evidence  that  either 
when  she  left  Moji  on  the  6th  day  of  the  2nd  month  of  the  37th  year 
of  Meiji  or  afterwards,  she  knew  the  fact  that  Russia  and  Japan  had 
entered  into  the  state  of  war  or  the  fact  that  hostilities  had  begun 
between  the  two  countries.  She  was  first  apprised  of  the  opening  of 
hostilities  when  she  was  ordered  by  an  Imperial  man-of-war  off  Port 
Arthur  to  steer  for  Nagasaki.  And  therefore  the  ship  under  con- 
sideration and  her  cargo  are  not  forfeitable. 

However,  when  the  Japanese  man-of-war  seized  the  ship  off  Port 
Arthur,  it  was  after  the  battles  of  Chemulpo  and  Port  Arthur,  that 
is,  on  the  9th  day  of  the  2nd  month  of  the  37th  year  of  Meiji. 
Moreover,  the  ship  had  been  chartered  by  a  Russian  mercantile  com- 
pany, and  was  carrying  a  large  quantity  of  coal  with  the  intention 
of  reaching  a  Russian  naval  base.  Under  such  circumstances,  the 
capture  of  the  ship  was  a  proper  measure. 

Upon  these  facts  and  grounds  the  ship  under  consideration  and  her 
cargo  are  hereby  released. 

Given  this  7th  day  of  the  3rd  month  of  the  37th  year  of  Meiji  at 
the  Sasebo  Prize  Court. 

(Signed)     The  President  and  Councillors  of  the 
Sasebo  Prize  Court. 

Sect.  II.     Vessels  Released   By  Virtue  of   the  Following 
Imperial  Ordinance  No.  CCXXVHI. 

"Promulgated  on  the  1st  day  of  the  11th  month  of  the 
38th  year  of  Meiji   (Nov.  1,  1905)." 

Vessels  and  their  cargoes  captured  after  the  5th  day  of  the 


754  NEW   CASES   ON  PRIZE   LAW.  [PART  V. 

9th  month  of  the  38th  year  of  Meiji  are  hereby,  as  a  special 
favour,  released. 

Those  released  were  as  follows : 

The  Hans  Wagner  (German). 

The  Kow-loon  (German). 

The  M.  Struve  (German). 

The  Arufrid  (Norwegian). 

The  Barracouta  (the  United  States). 

The  Centennial  (the  United  States). 


APPENDICES. 


APPENDIX  I. 

SPEECH   OF   BARON  KOMURA  ON  THE 
MANCHURIAN   QUESTION. 

The  following  is  the  official  translation  of  the  speech  delivered  by 
Baron  Komura,  Minister  of  Foreign  Affairs,  in  the  House  of  Repre- 
sentatives on  the  23rd  of  May,  1904. 

Gentlemen  : 

It  is  a  great  honour  to  me  to  make  a  brief  statement  before  this 
House  regarding  the  course  of  negotiations  between  Japan  and  Russia, 
from  the  commencement  to  their  termination.  These  negotiations  lasted 
for  more  than  half  a  year  and  are  of  a  most  complicated  nature.  Now 
I  will  try  to  briefly  explain  to  you,  gentlemen,  the  main  points  of  these 
negotiations. 

When  upon  the  sudden  outbreak  in  North  China  of  the  Boxer 
troubles  in  1900,  the  Powers  sent  forces  to  Chihli  for  the  relief  of 
their  representatives  and  nationals,  and  were  taking  action  in  har- 
monious co-operation,  Russia  despatched  a  large  army  into  Manchuria 
and  finally  took  possession  of  the  whole  of  that  province.  She  re- 
peatedly declared  at  the  time  that  this  despatch  of  troops  was  simply 
for  suppressing  the  Chinese  insurgents  and  was  not  for  the  purpose 
of  conquest;  that  she  was  determined  to  respect  the  sovereignty  and 
territorial  integrity  of  China  in  Manchuria,  and  that  consequently  her 
occupation  of  that  province,  which  was  the  result  of  inevitable  cir- 
cumstances, was  intended  to  be  merely  temporary.  Nevertheless,  on 
more  than  one  occasion  she  tried  to  induce  China  to  conclude  a  treaty 
of  a  nature  tending  to  impair  China's  sovereignty  and  incompatible 
with  the  treaty  rights  of  the  Powers.  Accordingly,  on  each  occasion 
the  Imperial  Government  warned  both  Russia  and  China,  and  Russia 
finally  concluded  in  April,  1902,  a  convention  providing  for  the  restora- 
tion of  Manchuria.  In  accordance  with  the  stipulations  of  the  con- 
vention, Russia  commenced  to  prepare  for  the  restoration,  and,  in 
fact,  a  partial  evacuation  had  already  been  effected,  when  in  April 
last  year  there  was  a  sudden  change  in  her  attitude  and  not  only  were 
the  withdrawal  of  her  forces  from  Manchuria  and  the  restitution  of 
the  administration  to  China  suspended,  but  also  various  additional 
conditions  were  demanded  from  China.  This  action  is  believed  to  have 
been  due  to  divided  counsels  in  Russian  Government  circles  regarding 
the  solution  of  the  Manchurian  question  and  to  the  subsequent  ascen- 
dency of  the  party  in  favour  of  permanent  occupation. 

The  development  of  affairs  in  Manchuria  received  the  most  careful 
attention  of  the  Imperial  Government.  The  maintenance  of  the  inde- 
pendence and  territorial  integrity  of  Korea  is  of  the  utmost  importance 
to  the  safety  and  repose  of  this  Empire,  and  is,  in  fact,  our  tradi- 
tional policy;  while  in  case  of  the  absorption  of  Manchuria  by  Russia, 
the  separate  existence  of  Korea  would  be  constantly  menaced  and  the 
firm  establishment  of  the  peace  of  the   Far  East  would  become   im- 

755 


756  APPENDIX  I. 


possible.  The  Imperial  Government,  therefore,  having  regard  to  the 
future  well  being  of  the  Empire,  deemed  it  necessary,  for  consolidat- 
ing the  peace  of  the  Extreme  East  and  for  securing  the  rights  and 
interests  of  the  Empire,  to  open  as  soon  as  possible  negotiations  with 
Russia  with  a  view  to  a  friendly  definition  of  the  interests  of  the 
two  countries  in  Manchuria  and  Korea,  where  those  interests  meet, 
and  thereby  to  remove  every  cause  of  future  conflict  between  Japan 
and  Russia.  The  Japanese  Government  therefore  instructed  their 
representative  at  St.  Petersburg  on  July  28th,  1903,  to  bring  their 
wishes  to  the  attention  of  the  Russian  Government  and  to  request 
their  concurrence  therein.  The  Russian  Government  willingly  assented 
thereto,  and  the  Russian  Minister  for  Foreign  Affairs  announced  that 
he  had  obtained  Imperial  authority  to  open  negotiations  on  the  sub- 
ject. Accordingly,  on  the  12th  August  last,  the  Imperial  Government 
presented  to  the  Russian  Government,  through  their  Minister  at  St. 
Petersburg,  as  the  basis  of  negotiations,  proposals  which  were  sub- 
stantially  as   follows: 

1.  Mutual  engagement  to  respect  the  independence  and  territorial 
integrity  of  China  and  Korea. 

2.  Mutual  engagement  to  maintain  the  principle  of  equal  oppor- 
tunity for  the  commerce  and  industry  of  all  nations  in  China  and 
Korea. 

3.  Reciprocal  recognition  of  Japan's  preponderating  interests  in 
Korea  and  Russia's  special  interests  in  railway  enterprises  in  Man- 
churia, and  mutual  recognition  of  the  respective  rights  of  Japan  and 
Russia  to  take  measures  necessary  for  the  protection  of  the  above- 
mentioned  interests  so  far  as  they  do  not  conflict  with  the  principle 
of  Art.   I.   and  Art.   II. 

4.  Recognition  by  Russia  of  the  exclusive  right  of  Japan  to  give 
advice  and  assistance  to  Korea  in  the  interests  of  reform  and  good 
government. 

5.  Engagement  on  the  part  of  Russia  not  to  impede  the  eventual 
extension  of  the  Korean  railway  into  Southern  Manchuria,  so  as  to 
connect  with  the  East  China  and  the  Shanhai-kwan-Newchwang  lines. 

About  ten  days  after  the  presentation  of  the  proposals,  of  which 
the  above  are  the  essential  points,  the  Russian  Minister  for  Foreign 
Affairs  suddenly  suggested  the  transfer  of  the  seat  of  negotiations  to 
Tokyo.  The  Imperial  Government,  however,  not  only  from  the  con- 
sideration that  the  progress  of  the  negotiations  would  be  facilitated 
by  conducting  them  at  the  Russian  capital,  but  also  in  view  of  the 
changes  brought  upon  the  Russian  administrative  organization  in 
Manchuria  and  the  creation  of  a  Viceroyalty  of  the  Far  East,  were 
afraid  that  the  transfer  of  the  seat  of  negotiations  to  Tokyo  would 
not  conduce  to  a  satisfactory  understanding.  They  accordingly  re» 
peatedly  objected  to  the  proposed  transfer,  but  the  Russian  Minister 
for  Foreign  Affairs  was  insistent,  assigning  as  the  reason  for  his  at- 
titude the  Czar's  contemplated  trip  abroad,  etc.  Again,  when  the 
Imperial  Government  requested  the  Russian  Minister  for  Foreign  Af- 
fairs to  accept  in  principle  our  proposals  as  the  basis  of  negotiation, 
he  only  agreed  to  take  them  in  conjunction  with  the  Russian  counter- 
proposals as  such  basis.  The  Imperial  Government,  deeming  it  dis- 
advantageous to  delay  any  longer  the  opening  of  discussion,  agreed 
at  length  to  transfer  the  seat  of  negotiations,  and  requested  the  Rus- 
sian Government  to  present  as  soon  as  possible  their  counter-proposals. 
It  was  not  until  nearly  a  month  later,  the  3rd  October,  that  the  said 
counter-proposals  were  presented. 

In  those  counter-proposals  Russia,  while  having  no  objection  to  en- 
gage to  respect  the  independence  and  territorial  integrity  of  Korea, 
declined  to   extend  the   same  engagement  to  China,   and  so  far  from 


APPENDIX  I.  757 


consenting  to  recognise  the  principle  of  equal  opportunity  for  the 
commerce  and  industry  of  all  nations  in  that  country,  requested  Japan 
to  acknowledge  Manchuria  and  its  littoral  to  be  entirely  outside  her 
sphere  of  interest.  She  further  proposed  various  restrictions  upon 
Japan's  freedom  of  action  in  Korea;  for  instance,  while  recognising 
Japan's  right  to  despatch  troops,  when  necessary,  for  the  protection 
of  her  interests  in  Korea,  Russia  demanded  previous  notice  in  case 
of  such  despatch,  and  she  refused  to  allow  Japan  to  use  any  portion 
of  Korean  territory  for  strategical  purposes.  She  went  so  far,  in  fact, 
as  to  propose  to  establish  a  neutral  zone  covering  the  Korean  ter- 
ritory north  of  the  39th  parallel,  that  is  to  say,  more  than  one-third 
of  the  entire  Korean  Empire. 

But  as  the  maintenance  of  the  sovereignty  and  territorial  integrity 
of  China  in  Manchuria  is  absolutely  essential  to  the  preservation  of  the 
independence  of  Korea,  and  as  such  maintenance  was  none  other  than 
a  principle  which  had  been  voluntarily  and  repeatedly  declared  by 
Russia  herself,  and,  moreover,  as  it  was  considered  necessary  to  keep 
uninjured  the  commercial  interests  of  all  the  Powers  concerned  upon 
the  strength  of  the  Russian  engagement  to  respect  treaty  rights,  the 
Imperial  Government  decided  to  maintain  to  the  end  their  proposal  on 
that  subject,  and  necessary  amendments  to  other  articles  were  also 
made;  for  instance,  that  the  imposition  of  any  restriction  to  Japan 
in  sending  troops  to  Korea  should  be  struck  out.  A  neutral  zone, 
if  it  was  to  be  created,  should  be  established  on  both  sides  of  the 
boundary  line  between  Manchuria  and  Korea,  to  the  same  extent — i.  e., 
fifty  kilometres  on  each  side.  Regarding  these  amendments,  several 
interviews  had  taken  place  with  Baron  Rosen  since  the  6th  October 
last,  and  as  the  result  of  repeated  discussions,  in  which  some  of  our 
amendments  were  accepted,  while  as  to  others  no  agreement  was  ar- 
rived at,  our  definitive  amendments  were  presented  to  Baron  Rosen  on 
the  30th  of  that  month,  and  the  Russian  Government  were  asked  to 
consider  them.  Although  we  frequently  pressed  for  an  answer,  the 
Russian  reply  was  again  greatly  delayed,  and  it  only  reached  us  on  the 
11th  December.  This  was  the  second  Russian  counter-proposal.  If 
the  regret  of  the  Imperial  Government  at  such  delay  was  deep,  their 
disappointment  at  the  contents  of  the  reply,  when  it  was  received, 
was  still  more  profound,  for  in  it  the  clauses  relating  to  Manchuria 
were  completely  suppressed,  thus  restricting  the  proposed  convention 
entirely  to  Korea,  while  on  the  other  hand  the  original  demands  re- 
garding the  neutral  zone  and  the  non-employment  of  Korean  territory 
for  strategical  purposes  wer.e  revived.  But  the  object  of  the  convention 
was,  as  above  stated,  the  removal  of  all  causes  of  future  conflict  by  a 
definitive  settlement  of  all  questions  between  the  two  countries  at 
points  where  their  interests  meet,  and  if  Manchuria  were  placed  out- 
side the  purview  of  the  arrangement,  and  a  moiety  of  the  problem 
were  thus  to  remain  unsolved,  the  result  would  plainly  be  at  variance 
with  the  aims  for  which  the  negotiations  were  inaugurated.  Conse- 
quently on  the  21st  of  December  last,  the  Imperial  Government  asked 
the  Government  of  Russia  to  reconsider  their  position  on  the  subject 
of  Manchuria,  and  again  requested,  with  respect  to  Korea,  the  sup- 
pression of  the  restrictions  as  to  the  employment  of  Korean  territory, 
and  they  also  proposed  the  entire  deletion  of  the  clause  relating  to  a 
neutral  zone,  as  it  was  considered  that,  if  Russia  would  not  agree 
to  its  extension  into  Manchuria,  it  would  be  only  fair  not  to  create 
it  in  Korea. 

The  Russian  Government  gave  their  reply  on  the  6th  of  January, 
in  which  they  still  adhered  to  their  original  proposals  regarding  Korea, 
and  on  condition  that  those  proposals  were  accepted  by  the  Imperial 
Government,  they  offered  to  agree  to  the  insertion  of  a  clause  stipulat- 


758  APPENDIX   I. 


ing  that  Russia  would  not  impede  the  enjoyment  by  Japan  and  other 
Powers  of  the  rights  and  privileges  acquired  under  existing  treaties 
with  China.  This  at  first  sight  might  seem  to  be  a  concession  on  the 
part  of  Russia  regarding  Manchuria,  but  in  reality  it  was  not  so, 
for  Russia  made  it  conditional  with  certain  propositions  regarding 
Korea,  to  which  Japan  could  never  agree.  Again  no  stipulations  were 
to  be  made  as  to  the  territorial  integrity  of  Manchuria  and  the  above- 
mentioned  clause  unaccompanied  by  assurances  concerning  territorial 
integrity  would  be  practically  valueless.  Accordingly  the  Imperial 
Government,  recognising  the  absolute  necessity  of  causing  Russia  to 
engage  herself  to  respect  the  territorial  integrity  of  Manchuria,  and 
finding  no  margin  for  further  concession  in  regard  to  Korea,  decided 
to  firmly  insist  upon  their  amendment,  and  once  more  requested,  on 
the  13th  January  last,  the  reconsideration  of  the  Russian  Govern- 
ment. They  subsequently  instructed  the  Japanese  Minister  at  St. 
Petersburg  to  repeatedly  ask  for  a  reply.  The  Russian  Government, 
however,  did  not  make  answer,  neither  did  the  Russian  Minister  for 
Foreign  Affairs  give,  in  his  interview  with  Mr.  Kurino  held  so  late 
as  the  31st  January,  even  an  indication  as  to  the  date  whereon  the 
reply  would  be  presented. 

Upon  the  whole,  while  the  Imperial  Government  invariably  met 
Russia  in  a  conciliatory  and  frank  spirit,  in  the  hope  of  arriving  at 
a  speedy  solution  of  the  situation  by  yielding  to  Russia's  wishes  so 
far  as  they  could  do  so  without  impairing  the  vital  interests  of  Japan, 
Russia  always  unduly  delayed  her  replies,  or  proposed  such  amend- 
ments as  were  altogether  inconsistent  with  the  idea  of  an  amicable 
settlement,  thus  making  the  situation  more  and  more  complicated. 
Besides  Russia,  while  professing  peaceful  intentions  on  one  hand,  made 
on  the  other  great  naval  and  military  preparations,  despatching  all 
her  most  powerful  war  vessels  to  the  Extreme  Orient  and  sending 
military  reinforcements  tens  of  thousands  strong  to  Manchuria  and 
neighbouring  regions.  An  unusually  great  activity  was  shown  by  her 
in  purchasing  and  transporting  arms,  ammunition,  stores  and  coal 
to  the  same  region,  so  that  it  was  placed  beyond  the  range  of  doubt 
that  Russia  had  no  sincere  desire  for  conciliation,  and  only  aimed 
to  compel  us  to  yield  to  her  designs  by  force  of  arms.  Especially 
towards  the  end  of  January  the  warlike  activities  of  Russia  were  so 
far  accelerated  that  the  allowance  by  Japan  of  further  procrastination 
would  certainly  have  placed  the  Empire  in  serious  danger.  Although 
the  Imperial  Government  entertained  an  extremely  sincere  desire  for 
peace,  yet,  in  the  face  of  such  circumstances,  they  could  not  avoid 
deciding,  after  a  most  careful  survey  of  the  situation,  to  break  off 
the  negotiations  with  Russia  and  to  take  all  necessary  measures  for 
self-defence.  Accordingly  on  the  5th  of  February  they  issued  tele- 
graphic instructions  to  the  Japanese  Minister  at  St.  Petersburg  to 
announce  to  the  Russian  Government  that  the  Imperial  Government 
had  terminated  negotiations  relative  to  the  proposed  Russo-Japanese 
convention,  and  that  they  would  take  such  independent  action  as  they 
might  deem  best  to  defend  and  consolidate  their  menaced  position  and 
to  protect  their  established  rights  and  legitimate  interests,  and  that 
they  would  sever  diplomatic  relations  with  Russia  and  withdraw  their 
legation.  In  accordance  with  those  instructions  our  Minister  at  St. 
Petersburg  made  the  communication  on  the  6th  February  last. 

Such  is,  gentlemen,  a  brief  account  of  the  negotiations  with  Russia. 
As  for  the  details  the  document  just  presented  to  the  Diet  will  afford 
you  full  information. 


APPENDIX  II.  759 


APPENDIX   II. 

THE    MEMORANDUM    OF    THE    SEVEN" 
PROFESSORS. 

The  war  of  1904-1905  was  not  a  struggle  between  two  nations, 
but  in  fact  it  was  the  fighting  of  a  nation  against  a  hostile  Govern- 
ment. Japanese  fought  for  their  native  land  and  their  emperor,  with- 
out a  single  exception,  with  a  determination  of  sacrificing  their  lives, 
if  need  be.  The  Russians  were  not  all  in  accord  with  the  principles 
of  their  aristocratic  and  despotic  government,  whose  aggressive  policy 
caused  the  war,  and  were  forced  to  fight  for  nothing  more  than  to 
satisfy  a  desire  of  their  ruler.  When  we  met  with  several  Russian 
prisoners  during  the  war  we  asked  them  for  what  they  were  fighting. 
They  did  not  explain  the  reason,  and  simply  said  they  fought  because 
they  were  obliged  to  come  to  the  front.  On  the  contrary,  the  Japa- 
nese understood  the  situation  of  their  own  country,  fought  for 
the  sake  of  their  country  as  well  as  for  the  sake  of  their  own  existence ; 
that  is  the  reason  they  went  willingly  to  the  front  and  fought  to  the 
death.  Their  comrades  fell,  the  next  marched  into  battle,  and  then 
the  third  marched  into  place;  brothers  went  after  brothers,  and  all 
were  satisfied  to  die  for  their  native  land.  Such  was  the  Japanese 
loyalty  and  there  is  no  doubt  of  their  conquering  the  formidable  enemy. 

On  the  whole,  Japan's  success  is  not  only  the  Japanese  Government's 
success  but  the  success  of  the  nation,  so  we  must  admire  the  common 
soldier  just  as  we  admire  Admiral  Togo,  and  all  must  praise  Japanese 
individuals  just  as  we  praise  some  of  the  civil  officers. 

It  must  be  observed  that  some  time  before  the  war  the  Japanese 
people  did  not  fully  appreciate  the  real  conditions  of  the  Far  East, 
and  also  did  not  discover  the  real  intention  of  the  Russian  Govern- 
ment. Even  eminent  diplomatists  and  learned  men  insisted  upon  the 
Russo-Japanese  Alliance  at  that  time,  and  dreamed  of  the  exchange 
of  Korea  for  Manchuria,  while  Russia  was  eagerly  increasing  her 
forces  in  the  Far  East  to  take  both  of  them.  At  that  time  seven 
professors  in  the  Tokyo  University  endeavoured  to  bring  this  fact  to 
light,  and  to  explain  that  there  remained  no  other  means  except  to 
fight  in  order  to  keep  perpetual  peace  in  the  Far  East.  At  first  people 
thought  these  professors  to  be  mad,  because  they  insisted  upon  con- 
fronting so  formidable  an  enemy,  of  which  all  the  world  stands  in 
awe.  Sometimes  the  Japanese  authorities  tried  to  punish  them  but 
in  vain,  because  they  had  a  freedom  of  discussion.  At  last,  finding 
that  the  condition  was  very  serious,  and  that  there  was  no  time  to 
hesitate,  they  sent  a  memorandum  to  the  members  of  the  Cabinet,  in- 
sisting that  war  was  unavoidable.  It  was  time  that  the  efforts  of  the 
professors  had  succeeded  in  informing  all  the  Japanese  people  why 
they  must  fight,  and  to  make  up  their  minds  to  sacrifice  their  lives, 
and  those  of  their  kindred.  It  is  not  inappropriate  to  describe  the 
resumS  of  the  memorandum  that  appeared  in  foreign  papers  in  Japan 
at  the  time,  because  it  will  serve,  as  a  study  of  the  real  phenomena  of 
diplomatic  history  and  will  aid  in  understanding  the  courses  of  diplo- 
matic questions  at  stake. 


760  APPENDIX  II. 


THE  MEMORIAL  OF  THE  SEVEN  PROFESSORS.1 

It  has  already  been  stated  in  these  columns  that  on  the  8th  of 
June,  1903,  seven  professors  of  the  Imperial  University  addressed  to 
the  members  of  the  Cabinet  a  memorial  on  the  Manchurian  question. 
The  memorialists  have  now  published  a  document,  their  alleged  rea- 
sons for  doing  so  being  that  portions  having  already  been  published 
without  their  permission,  and  a  wrong  impression  having  thus  been 
conveyed,  they  feel  justified  in  making  known  the  whole.  The  docu- 
ment sets  out  by  insisting  on  the  importance  of  not  following  a  policy 
of  drift  and  in  not  allowing  occurrences  to  slip  by.  As  illustrations 
the  memorialists  urge  that,  had  the  rendition  of  the  Liaotung  Pen- 
insula been  made  the  occasion  for  demanding  of  China  a  pledge  that 
the  region  should  never  be  alienated,  there  would  not  now  be  any 
Manchurian  problem.  Again,  when  Germany,  with  a  very  feeble  force 
and  without  any  assistance,  seized  Kiaochow,  a  determined  protest  on 
Japan's  part  would  have  completely  changed  the  aspect  of  affairs. 
Finally,  when  an  agreement  was  made  as  to  the  withdrawal  of  the 
troops  from  North  China,  Manchuria  was  not  included  in  its  scope, 
and  thus  the  present  complications  arose.  If  the  same  policy  of  neg- 
lect be  pursued  now,  China,  Japan  and  other  Oriental  countries  will 
never  be  able  to  raise  their  heads  again,  and  an  everlasting  calamity 
will  be  brought  upon  this  Empire.  The  professors  then  go  on  to 
insist  that  Russia's  aggressive  progress  in  Eastern  Asia  is  continuous 
and  uninterrupted,  and  the  longer  it  is  left  unchecked  the  more  diffi- 
cult it  will  be  to  check.  The  only  satisfactory  point  in  the  situation 
is  that  just  at  present  Japan's  armament  is  more  or  less  superior 
to  that  of  Russia  in  this  part  of  the  world.  This  superiority,  how- 
ever, will  not  last  for  more  than  a  year.  The  details,  being  secret, 
are  not  published  by  the  memorialists,  but  they  claim  to  have  fully 
investigated  them.  Russia  cannot  be  supposed  to  have  entire  confi- 
dence at  present  in  her  ability  to  defeat  Japan  in  war;  nevertheless, 
she  is  showing  her  contempt  for  treaties;  she  is  inciting  the  Man- 
churian free  looter;  she  is  sending  troops  under  disguise  into  Korea; 
she  is  attempting  to  obtain  leases  of  lands  in  the  Peninsular  Empire. 
If  such  is  her  conduct  in  these  days  of  uncertain  military  preponder- 
ance, what  may  be  expected  of  her  when  she  feels  herself  altogether 
superior  in  the  matter  of  armament?  And  if  she  becomes  mistress 
of  Manchuria,  how  can  she  be  kept  out  of  Korea;  what  will  be  her 
next  objective?  The  sum  of  the  matter  is  that  if  the  Manchurian 
problem  be  not  satisfactorily  solved,  neither  will  the  Korean,  and  if 
not  the  Korean,  then  neither  will  the  Japanese.  This  is  the  time. 
Japan  has  the  position  and  she  has  the  men.  Some  folks  say  that 
the  utmost  circumspection  is  required  in  foreign  affairs;  that  the 
attitude  of  each  power  must  be  accurately  determined  beforehand. 
That  is  true.  But  in  the  present  case,  China's  attitude  is  known. 
So  is  the  attitude  of  Germany  and  France,  for  although  they  will  not 
favour  Japan,  neither  will  they  join  Russia  at  the  cost  of  having  to 
face  England.  As  for  the  United  States,  it  merely  wants  the  open 
door  in  Manchuria  at  present,  and  it  will  not  take  part  in  any  strug- 
gle for  the  sovereignty  of  the  district.  Hence  England  alone  remains 
to  be  considered.  Her  treaty  of  alliance  finds  her  in  an  attitude 
of  neutrality  in  case  Japan  is  confronted  by  one  Power  only.  If 
time  is  to  be  lost  in  further  consultations  with  her,  it  will  be  very 
regrettable.  The  memorialists  then  deal  with  the  policy  of  an  ex- 
change between  Korea  and  Manchuria,  which  they  condemn  as  totally 
unwise.     They   contend  that  the  two  problems  must  be  treated  inde- 

1  The  Japan  Times,  June  28,  1903. 


APPENDIX   III.  761 


pendently.  They  further  insist  upon  the  lawlessness  of  Russia's  failure 
to  withdraw  her  troops,  and  point  out  that  a  mere  transfer  of  her 
forces  from  one  part  of  the  region  to  another  is  in  no  sense  a  with- 
drawal. 

The  names  of  the  signatories  are: 

Professors  M.  Tomii,  H.  Tomizu,  T.  Terao,  N.  Kanai,  S.  Takahashi, 
S.  Nakamura,  K.  Onozuka. 


APPENDIX   III. 

DIARY   OF   THE   WAR   BETWEEN   JAPAN   AND 
RUSSIA,    1904-1905. 

February  6th. 

Rupture   of   diplomatic   relations   with   Russia. 

Telegraphic  instructions  despatched  to  Mr.  Kurino,  Minister  in  St. 
Petersburg  to  withdraw. 

Yesterday  and  to-day,  instructions  sent  out  to  withdraw  the  Im- 
perial Consulates  at  Odessa  and  Newchwang,  and  the  Imperial 
Commercial  Agency  at  Vladivostock. 

The  Sai-yen  captures  the  Ekaterinoslav. 

The  Hei-yen  captures  the  Mukden. 

February  7th. 

The  Tatsuta  captures  the  Russia  in  the  Korean  Sea. 

The  Azuma  captures  the  Russian  steamer  Argoon  in  the  Korean  Sea. 

February  8th. 

Our  Government  sends  a  notification  to  the  Powers  of  the  rupture 
of  the  diplomatic  negotiations  with  Russia. 

Admiral  Urin  arrives  at  Chemulpo  with  his  squadron. 

At  11  p.m.,  our  torpedo  boats  attacked  Port  Arthur  and  gave  seri- 
ous injury  on  the  Russian  warships  Tzesarevitch,  Retvisan  and 
Pallada. 

Mr.  Mizuno,  Consul  at  Chefoo,  came  to  Port  Arthur  to  call  back 
Japanese  residents,  and  returned  to  Chefoo  on  the  9th. 

Mr.  Iijima,  Consul  at  Odessa,  left  that  place  for  Vienna. 

February  9  th. 

At  8.30  a.m.,  Admiral  Togo  attacked  Port  Arthur  with  his  squadron 

and  gave  injury  to  the  Russian  warships  Pollara,  Diana,  Askold 

and  Novik. 
The  Tatsuta  captured  the  Nandjuria  off  Port  Arthur. 
At  noon  the  Korietz  and  Variag  were  ordered  to  leave  Chemulpo. 

Fight  ensued  in  which  both  the  Russian  warships  were  sunk. 
The  Sungari  captured  at  Chemulpo. 

February  10th. 

Japan's  Declaration  of  War  published. 

In  the  afternoon  the  Nicholai  and  Mihael  captured  in  the  Korean 
Sea.     Later  the  Alexander  captured  in  the  Harbour  of  Izuhara. 


762  APPENDIX  III. 


February  11th. 

Mr.  Kurino,  Minister  in  St.  Petersburg,  left  the  Russian  capital  for 

Berlin.     (He  returned  to  Japan  on  the  4th  of  May.) 
Mr.  Segawa,  Consul  at  Newchwang,  left  that  port  for  Japan. 
The  Vladivostock  Squadron  came  out  to  the  Japan  Sea  and  fired 

upon  and  sank  our  merchant  steamer  Nakonoura  Maru. 
The   Russian  mine-ship   Yenisei  blown   up   at   Talienwan   by   their 

own  mine. 

4  February  12th. 

The  Russian  cruiser  Boyarin  injured  by  their  own  mine  at  Talien- 
wan. 

Our  squadron  attempted  to  seal  Port  Arthur  by  sinking  vessels. 

Mr.  Kawakami,  Commercial  Agent  at  Vladivostock,  left  that  port 
for  Japan. 

February  16th. 

The  Nisshin  and  Kasuga  arrived  at  Yokosuka. 

February  17  th. 

At  11  a.m.,  the  Katsuragi  captured  the  Juriade  in  the  Harbour  of 
Nagasaki. 

February  18th. 

Russian  account  of  the  diplomatic  negotiations  published. 

February  19th. 

The  Chinese  Government  demanded  the  disarmament  of  the  Russian 
gunboat  Mandjur,  anchored  at  Shanghai. 

February  22nd. 

The  Russian  Government  sent  notification  to  the  Powers  about  her 
attitude  on  the  Manchurian  question. 

February  23rd. 

The  Russian   Squadron   for  the   East  under  Admiral  Virenius   put 

back  from  the  Red  Sea  for  home. 
Late  at  night  our  squadron  again  attempted  to  seal  Port  Arthur  by 

sinking  vessels. 

February  2Ifth. 

Our  torpedo  boats  attacked  Port  Arthur. 

February  25th. 

At  11  a.m.,  our  squadron  opened  fire  on  Port  Arthur  and  sank  one 
Russian  torpedo  boat. 

February  27th. 

Agreement  between  Japan  and  Korea  signed. 

March  3rd. 

Publication  of  our  protest  against  the  Russian  account  of  February 
18th  and  20th. 

March  6th. 

The  commander  of  the  Chiyoda  presented  to  the  Emperor  some  of 
the  prizes  captured  in  the  naval  fight  off  Chemulpo. 

March  8th. 

A  Reuter's  telegram  reported  our  bombardment  of  Vladivostock. 
Ambassador  Ito  ordered  to  proceed  to  Soul  to  pay  a  friendly  visit 
to  the  Korean  King. 


APPENDIX  III.  763 


March  9th. 

The  Imperial  Household  subscribes  Yen  20,000,000  towards  the  Ex- 
chequer Bonds. 
The  Prince  Imperial   and  Prince  Arisugawa  appointed  attaches  to 
the  Headquarters. 

March  10th. 

The  fourth  attack  on  Port  Arthur. 

March  22n'd. 

The  fifth  attack  on  Port  Arthur. 

March  23rd. 

Count  Katsura,  Premier,  and  Baron  Komura,  Minister  for  Foreign 
Affairs,  delivered  speeches  in  the  Lower  House  about  the  diplo- 
matic negotiations  with  Russia. 

March  26th. 

Ambassador  Ito  and  suite  left  Soul  for  Japan. 

Our  merchant  ship  Han-yei  Maru  sunk  by  Russians  off  te  Miao-tao 
Islands. 

March  21th. 

The  sixth  attack  on  Port  Arthur  and  its  blocking  by  sunken  vessels. 

April  1st. 

Ambassador  Ito  returned  from  Korea  and  gave  his  report  to  the 
Emperor. 

April  9th. 

An  account  published  of  the  improper  statement  made  by  the  Rus- 
sian Minister  for  Justice  at  The  Hague  Conference. 

April  10th. 

Collision  of  Japanese  and  Russian  scouts  at  the  Yalu. 

April  11th. 

The  seventh  and  eighth  attacks  on  Port  Arthur    (begun). 

April  13th. 

Admiral  Makaroff  killed  in  naval  fighting. 

April  15th. 

Completion  of  the  attacks  on  Port  Arthur  started  on  the  11th. 

April  17th. 

The  consular  staff  and  police  officers  at  Syong-jin  left  there  for 
Gensan,  together  with  Japanese  residents. 

April  18th. 

Our  Minister  in  Peking  reported  by  wire  the  withdrawal  of  the 
prohibition  placed  on  the  export  of  bean-cakes,  on  the  condition 
of  their  not  being  used  for  warlike  purposes. 

April  23rd. 

Arrival  of  Mrs.  Maggy  from  America. 

April  25th. 

Russians  sank  our  merchant  steamer  Ooyo  Maru  off  Gensan. 

April  26th. 

Russians  sank  our  transport  Kinshu  Maru  off  Mayan  Do. 

May  1st. 

Our  First  Army  occupied  Kinliencheng  and  defeated  the  Russians  at 
Homutang. 


764  APPENDIX   III. 


May  3rd. 

Another  attempt  to  block  Port  Arthur  by  sinking  vessels. 

May  5th. 

A  portion  of  our  Second  Army  began  to  land  on  Liaotung  Peninsula. 

May  6th. 

Our  First  Army  pursued  Russians  to  Fenghwangchenn  and  occu- 
pied it.  . 

Our  Second  Army  occupied  Pulantien  and  cut  off  communication 
with  Port  Arthur. 

May  8th. 

Our  Consular  staff  at  Korsakoosk  left  there  for  Japan. 

May  9th. 

An  agreement  signed  for  floating  a  foreign  loan  of  Yen  100,000,000. 

May  12th. 

The  first  sea-clearing  carried  out  near  Talienwan,  and  torpedo  boat 
No.  48  sunk  by  a  mine. 

0  May  Hth. 

Reported  that  the  First  Army  occupied  Kuantien  on  the  7th  of  this 

month. 
The  second  sea-clearing  carried  out  near  Talienwan  and  the  despatch 

boat  Miyako  sunk  by  a  mine. 

May  15th. 

•      The  Hatsuse  and  Yoshins  sunk  off  Port  Arthur. 

May  17th. 

A  portion  of  the  Second  Army  occupied  San-shi-li-pu,  Kin-li-pu  and 
Pei-cha-tun. 

May  19th. 

Landing  at  Takushan  started. 

May  20th. 

Our  combined  squadron  reconnoitred  Port  Arthur  under  enemy's  fire. 
Reported  sinking  of  the  Bogatyr  of  the  Vladivostock  Squadron. 

May  23rd. 

Floating  of  the  Second  Exchequer  Bonds  of  Yen  100,000,000  pub- 
lished. 

May  26th. 

The  Second  Army  occupied  Kinchon. 
Our  fleet  assisted  the  army  by  bombarding  Kinchon. 
The  Second  Army  occupied  Nanshan. 

Admiral  Togo  announced  the  direct  blockade  of  the  south  of  Liao- 
tung Peninsula. 

May  27th. 

The  Second  Army  occupied  Nankwanling  and  Liushutun. 

May  30th. 

Our  fleet  made  the  second  reconnoitre  of  Port  Arthur  under  enemy's 
fire. 

June  3rd. 

The  Russian  Commander  of  Port  Arthur  proclaimed  martial  law. 


APPENDIX   III.  765 


June  Jfth. 

A  detachment  of  the  Talienwan  Sea-clearing  Fleet  reconnoitred  Peh- 

san-shan-tao. 
The  Russian  gunboat  Glemiacity  sunk  by  a  mine  near  Port  Arthur. 
The  Oaidamak  also  disappeared  about  the  same  time. 

June  6th. 

J     Forty-one  mechanical  mines  have  been  discovered  and  exploded  since 
the  3rd  of  this  month. 
Our  foifr  gunboats  reconnoitred  Port  Arthur  under  the  enemy's  fire 

and  received  their  shells. 
The  Matsushima  reported  to  have  built  poles  for  wireless  telegraphy 
at  Chin-wang-tao. 

June  7th. 

Our  detached  fleet  bombarded  the  coast  of  Kai-chan. 

June  8th. 

A  detachment  of  the  First  Army  defeated  the  enemy  at  Daitoryo 
and  then  occupied  Hsin-yen  in  co-operation  with  the  army  from 
Takushan. 

Another  reconnoitre  carried  on  under  the  enemy's  fire. 

1500  Chinese  residents  at  Port  Arthur  left  for  Chefoo  under  per- 
mission. 

June  10th. 

The  Fourth  Destroyer  Flotilla  bombarded  the  enemy  at  Ying-cheng- 

tzu  and  Shuan-tai-kan. 
The  Second  Destroyer  Flotilla  attacked  and  pursued  four  enemy's 
destroyers  in  the  neighbourhood  of  Shao-ping-tao. 

June  13th. 

An  explosion  and  consequent  deaths  and  injuries  took  place  in  the 

mine-ship   Taihoku  Maru. 
A  torpedo  flotilla  reconnoitred  Port  Arthur  under  enemy's  fire  and 

laid  mines. 
The  Russian  Consulate  at  Chefoo  reported  to  have  erected  poles  for 

wireless  telegraphy. 

June  15th. 

Our  army  captured  fourteen  guns,  wounded  the  enemy's  legionary 
commander,  and  killed  their  regimental  captain. 

A  torpedo  flotilla  bombarded  Shas-ping-tao  in  order  to  give  assist- 
ance to  our  army's  reconnoitres. 

The  Novik  and  ten  other  warships  came  out  of  Port  Arthur. 

The  Vladivostock  Squadron  appeared  on  the  Japan  Sea,  sank  the 
Hitachi  Maru  and  injured  the  Sado  Maru. 

June  16th. 

Admiral  Kamimura's  Squadron  pursued  the  Vladivostock  Squadron. 

The  Naval  Station  of  Takeshiki  despatched  a  torpedo  flotilla  to  get 
information  about  the  accident  of  the  Hitachi  Maru  and  Sado 
Maru. 

The  Fourth  Destroyer  Flotilla  exploded  enemy's  mines  in  the  south 
of  Lian-tie-shan. 

Subscriptions  to  the  Second  Exchequer  Bonds  closed,  the  total  sub- 
scription amounting  to  over  Yen  300,000,000. 

June  18th. 

The  Vladivostock  Squadron  appeared  off  Tokuyama. 
Kamimura's  Squadron  came  back  southward  in  search  of  the  Vladi- 
vostock Squadron,  but  in  vain. 


766  APPENDIX   III. 


June  19th. 

That  the  Izumi  Maru  had  been  sunk  before  the  Hitachi  Maru  be- 
comes certain. 
On  getting   a    report   that   the   Vladivostock    Squadron   was    in    the 
Northern   Sea,  Kamimura's  Fleet  gave  up  its  search  and  came 
back  to  the  naval  base. 

June  20th. 

Field  Marshal  Oyama  appointed   Commander-in-Chief  of  the   Man- 

churian  Army. 
General  Kodama  appointed  Chief  of  the  Manchurian  General  Staff. 
Field  Marshal  Yamagata  appointed  Chief  of  the  General  Staff  and 

Commissary-General. 
Major-General   Nagaoka   appointed  Adjutant   Chief  of  the   General 

Staff. 
Reported  that  over  100  survivors  of  the  Sado  Maru  have  arrived  at 

Vladivostock  by  the  Russian  Squadron. 

June  21st. 

Enemy's  two  destroyers  reported  to  have  been  sunk  by  a  mine. 

June  23rd. 

Battle  off  Port  Arthur  with  twenty-five  Russian  warships  from  that 
port.  In  this  fight  two  Russian  warships  were  lost,  while  our 
hhirakumo  and  Chidori  sustained  a  little  injury. 

June  24th. 

The  Russian  warships  that  were  defeated  in  yesterday's  fight  escaped 
back  into  Port  Arthur,  one  after  another. 

June  25th. 

A  report  arrived  of  the  new  appointment  of  officers  for  the  Russian 
Pacific  Squadron  and  new  warships. 

June  26th. 

A  report  arrived  of  a  Russian  loan  of  800,000,000  francs  having 
been  taken  up  in  Paris. 

June  30th. 

The  Vladivostock  Squadron  bombarded  the  Japanese  settlement  at 

Gensan. 
The  Sado  Maru  arrived  at  the  Nagasaki  Dock-yard  towed  by  the 

Takasago  Maru. 

July  1st. 

The  Vladivostock  Squadron  appeared  at  the  Tsushima  Straits. 

July  5th. 

The  gunboat  Kaimon  sunk  by  an  enemy's  mine  off  Talienwan. 

July  6th. 

Field    Marshal    Oyama,    Commander-in-Chief    of    the    Manchurian 

Army,  and  his  suite  left  Tokyo  for  the  front. 
A  steamer   of  the  Soul-Tsuan  Railway   Company   captured  by  the 
Russians  off  Otaru. 

July  9th. 

The  Sixth  Torpedo  Flotilla  attacked  and  gave  serious  injury  to  the 
Askola  off  Port  Arthur. 

Russian  warships  came  out  of  Port  Arthur  but  were  driven  back  by 
the  Third   Squadron. 

Those  Japanese  ships  that  have  been  running  between  Pingyang  and 
Chiunampo  with  the  Korean  flag  flying,  decided  to  fly  the  Japa- 
nese flag  instead,  in  the  future. 


APPENDIX  III.  767 


July  11th. 

The  Sixth  Torpedo  Flotilla  sank  an  enemy's  warship  of  the  Diana 

type  off  Port  Arthur. 
The  Russian  volunteer  cruiser  Smolensk  reported  to  have  passed  the 

Suez  Canal  with  coal  and  arms  on  board  in  company  with  the 

Petersburg  and  Orel. 
Correspondents  of  foreign  papers  granted  permission  to  proceed  to 

the  front. 

July  14th. 

Two  British  steamers  stopped  and  overhauled  in  the  Red  Sea  by 
a  steamer  of  the  Russian  Volunteer  Fleet. 

July  16th. 

The  Baltic  Squadron  reported  to  have  left  Kronstadt  on  the  2nd  of 
this  month. 

July  17th. 

The  Russian  volunteer  cruiser  Smolensk  stopped  the  German  steamer 

Prinz  Heinrick  in  the  Red  Sea  and  seized  mails  for  Japan. 
Our  warship  captured  the  steamer  Peh-ping  of  the  Kaiping  Iron 

Mine  Company. 

July  19th. 

The  German  Government  sent  in  a  protest  to  Russia  against  the 

seizure  of  mails  for  Japan  by  the  Volunteer  Fleet. 
The  Russian  gunboat  Chelumoletz  passed  the  Bosphorus. 

July  22nd. 

Three  warships  of  the  Vladivostock  fleet  passed  the  Tsugaru  Straits. 
Our  merchant  steamer  Takashima  Maru  sunk  by  Russians. 

July  23rd. 

The  Russian  Government  gave  a  reply  to  the  protest  of  the  British 
Government  about  the  seizure  of  the  merchant  steamer  Malacca. 

July  24th. 

Our  torpedo  flotilla  attacked  enemy's  destroyers  on  the  back  of  the 

Sensei  promontory  and  sank  three  of  them. 
The    Vladivostock    Squadron    sank    the    British    merchant    steamer 

Knight  Commander  off  Idzu. 

July  25th. 

Our  army  occupied  Tah-shih-Kias  and  Yingkao. 

The  Russian   Government   reported   to   have  given   to  the  German 

Government   a   declaration   that   a  case   like  the  seizure   of  the 

Prinz  Heinrick  should  not  be  repeated. 
The  Vladivostock  Squadron  appeared  off  the  Ommae  Promontory. 

July  27th. 

A  rumour  prevalent  that  the  Vladivostock  Squadron  appeared  at  a 
distance  of  60  knots  off  the  Tokyo  Bay,  and  that  the  report  of 
guns  could  be  heard  off  Awa. 

July  30th. 

Orders  of  merit  granted  to  the  captain  and  other  Englishmen  of  the 
Hitachi  Maru. 

August  3rd. 

Occupation  of  Hai-cheng  and  Newchwang. 

August  hth. 

Our  Imperial  Consulate  opened  at  Newchwang. 


768  APPENDIX  III. 


August  5th. 

Our  three   destroyers   attacked   and  defeated  enemy's   fourteen  de- 
stroyers off  Port  Arthur. 
The  Russian  gunboat  Civooch  sank  herself  in  the  Liao  River. 

August  10th. 

The  Russian  Fleet  attempted  a  sortie  from  Port  Arthur  but  was 
driven  back  with  heavy  damages.  Admiral  Vithoft,  Provisionary 
Commander-in-Chief  of  Port  Arthur  Squadron,  killed. 

August  11th. 

The  Askold,  the  Novik,  another  warship,  and  one  destroyer  took 
refuge  in  the  Kiao-chao  Bay,  and  another  destroyer,  Ryeshitelni, 
in  Chefoo. 

August  12th. 

Our  fleet  captured  the  Ryeshitelni,  which  had  taken  refuge  in  the 

harbour  of  Chefoo.  • 

The  Novik  left  Kiao-chao  Bay  for  Vladivostock. 
Birth  of  the  Czarevitch. 

August  13th.  • 

Marshal  Yamagata,  Chief  of  the  General  Staff,  sent  to  Marshal 
Oyama,  Commander-in-Chief  of  the  Manchurian  Army,  instruc- 
tions, by  the  Imperial  order,  to  protect  non-combatants  in  Port 
Arthur. 

August  lJfth. 

Kamimura's  Squadron  engaged  the  Vladivostock  Squadron  off  Ulsan 
and  sank  the  Rurik. 

August  15th. 

The    Tsarevitch   and   another   warship   at   Kiao-chao   Bay   disarmed 

themselves  and  are  to  be  interned  there  during  the  war. 
The  Russian  Government  reported  to  have  issued  a  protest  against 
the  seizure  of  the  Ryeshitelni  as  an  infraction  of  neutrality. 

August  16th. 

Our  Port  Arthur  Besieging  Army  sent  to  the  enemy  advice  to  sur- 
render, and  conveyed  to  them  at  the  same  time  an  Imperial 
order  granting  the  removal  of  non-combatants  from  Port  Arthur. 

Russia  reported  to  have  issued  new  bonds  for  a  loan  of  150,000,000 
rubles. 

August  17th. 

Promulgation  of  special  Post  Office  Savings  Bank  Regulations  ap- 
plicable at  the  front. 

An  enemy's  envoy  brought  their  reply  refusing  both  our  proposals. 

Our  army  sent  to  German  Naval  officers  in  Port  Arthur,  through 
the  enemy's  envoy,  a  message  from  the  German  Emperor. 

August  18th. 

•      An  enemy's  gunboat  of  the  Otoajni  type  sunk  by  a  mine  off  Liau- 
tie-shan. 
Our  Yayeyama  conveyed  German  officers  from  Port  Arthur  to  Kiao- 
chao  Bay. 

August  20th. 

Our  Chitose  and  Tsushima  bombarded  and  destroyed  the  Russian 
Novik  in  the  harbour  of  Korsakovsk. 

August  23rd. 

I     The  Russian  battleship  Sevastopol  suffered  serious  injury  by  a  mine 
outside  Port  Arthur. 


APPENDIX  III.  769 


August  24th. 

•      Enemy's  two  destroyers  damaged  by  a  mine  outside  Port  Arthur. 

August  25th. 

•  The  Governor  of  British  Malta  reported  to  have  prohibited  bellig- 
erent ships  that  have  detained  neutral  vessels  from  coaling. 

August  29th. 

Yesterday  and  to-day  our  blockading  fleet  captured  26  junks  in  the 
enemy's  service. 

September  4th. 

Our  army  occupied  Liao-yang. 

September  5th. 

Publication  of  the  agreement  between  Japan  and  Korea  signed  on 

the  22nd  of  August. 
Our  Detached  Squadron  reconnoitred  the  condition  of  the  Novik  de- 
stroyed at  Korsakovsk. 

September  10th. 

Our  army  occupied  the  Jentai  coal  mines. 
Publication  of  the  Prisoners'  Labour  Regulations. 

September  16th. 

Marshal  Yamagata  sent  telegraphic  instructions  to  Marshal  Oyama 
concerning  the  treatment  of  foreign  visitors  at  the  front. 

September  18th. 

Reported  capture  of  Captain  Gunji  and  the  slaughter  of  his  70  men 
at  Kamtchatka. 

The  Russian  cruiser  Diana  that  disarmed  herself  at  Saigon  on  the 
10th  of  this  month  is  intrusted  to  the  care  of  the  French 
authorities  to  be  interned  there  during  the  present  war;  and  the 
Russian  volunteer  cruiser  Lena,  that  put  into  San  Francisco  on 
the  11th  of  this  month,  disarmed  herself  and  is  intrusted  to  the 
American  Navy  to  be  interned  there  during  the  war. 

September  25th. 

German  Prince  Karl  Anton  von  Hohenzollern  arrived  at  Tokyo  on 
his  way  to  the  front  to  see  the  war. 

October  2nd. 

Our  warship  captured  the  smuggling  steamer  Shi-shang  at  Yingkas. 

October  6th. 

A  Berlin  telegram  reports  the  arrival  at  Bremerhaven  on  the  5th 

of  over  700  Japanese  on  their  way  back  from  Russia. 
Publication  of  the  strategical  account  of  the  Port  Arthur  Besieging 
Army  from  the  26th  of  May  to  the  31st  of  July. 

October  11th. 

German  Prince  Karl  Anton  von  Hohenzollern  left  the  Shimbashi 
Station  for  the  front. 

October  12th. 

The  Shirataka  captured  the  smuggling  steamer  Fu-ping  on  her  way 

to  Port  Arthur. 
Subscriptions   called    for  the   Third   Exchequer   Bonds   of   Yen    80,- 
000,000. 


770  APPENDIX   III. 


October  Utth. 

In  the  battle  carried  on  all  along  the  line  from  the  10th  up  to  date 
heavy  damages  were  inflicted  upon  the  enemy,  our  army  captur- 
ing more  than  30  field  guns  and  frustrating  the  enemy's  aggres- 
sive movements. 

October  15th. 

The  big  fight  started  on  the  10th  named  "  the  Battle  of  the  Shaho  " 
by  our  Manchurian  Headquarters. 
An  agreement  signed  to  engage  Mr.  Mekata  as  Financial  Advisor 
to  the  Korean  Government. 

October  17th. 

The  Baltic  Squadron  anchored  off  Danish  coast. 

October  23rd. 

A  London  telegram  reported  the  publication  in   St.   Petersburg  of 

the  Russian  loss  in  the  Battle  of  the  Shaho  as  12,000  killed  and 

55,865  wounded. 
The  Baltic   Squadron  fired   on  a   British   fishing  fleet  in  the  North 

Sea,  sinking  2  of  them  and  killing  18  fishermen. 

October  26th. 

Publication  of  the  Prisoners'  Punishment  Regulations. 

November  1st. 

Publication  of  the  strategical  account  of  the  Port  Arthur  Besieging 
Army  from  the  1st  of  August  to  the  29th  of  October. 

November  5th. 

Publication  of  the  strategical  account  of  the  Port  Arthur  Besieging 
Army  from  the  30th  of  October  to  the  3rd  of  November. 

November  10th. 

Publication  of  the  second  foreign  loan  of  Yen  120,000,000. 

November  16th. 

The  Detached  Baltic  Squadron  coming  via  Cape  of  Good  Hope  re- 
ported to  have  anchored  at  Dakar  and  received  a  supply  of  coal 
and  provisions  there. 

The  enemy's  destroyer  Ratstoropni,  by  taking  advantage  of  a  snow- 
storm, left  Port  Arthur  and  arrived  at  Chefoo  to-day  at  7  a.m. 

November  17th. 

Our  new  loan  of  £6,000,000  subscribed  thirteen  times  over  in  London. 

November  18th. 

An  official  telegram  reported  that  the  Russian  destroyer  Ratstoropni 
had  blown  herself  up  at  Chefoo. 

November  19th. 

A  report  comes  of  the  departure  from   Dakar  on  the   16th  of  the 

Baltic  Fleet  coming  via  Cape  of  Good  Hope. 
Cruisers,  transports,  and  destroyers  supplementing  the  Baltic  Squad- 
ron reported  to  have  left  Libau  on  the  16th. 

November  26th. 

2    Russian  battleships,    3    cruisers,    7   destroyers,   and   9   transports 

reported  to  have  arrived  at  Port  Said. 
A  telegram  comes   from  Berlin  informing  of  the   Baltic  Squadron's 
getting  a  supply  of  provisions  and  water  at  Port  Said. 


APPENDIX  III.  771 


November  27th. 

Telegrams  from  London  and  Berlin  report  the  signing  yesterday,  the 
26th,  of  an  Anglo-Russian  Convention  between  Sir  C.  Hardinge, 
British  Ambassador,  and  Count  Lamsdorff,  Russian  Minister  for 
Foreign  Affairs,  concerning  the  inquiry  of  the  North  Sea  Acci- 
dent. 

A  London  telegram  under  date  of  the  25th  reports  the  Baltic  Squad- 
ron just  passing  the  Suez  Canal. 

November  28th. 

The  Baltic  Squadron  reported  to  have  passed  the  Suez  Canal  yes- 
terday, the  27th. 

November  29th. 

A  report  comes  to  the  effect  that  2  Russian  cruisers  and  3  auxiliary 
cruisers  arrived  off  Dover  on  the  evening  of  the  22nd,  and  that 
coal-boatlike  steamers  arrived  later  to  meet  them. 

November  30th. 

According  to  a  Reuter's  telegram,  dated  London,  the  29th,  Lord 
Lansdowne,  British  Secretary  of  State  for  Foreign  Affairs,  ad- 
vised the  Chamber  of  Shipping  that  the  merchants  of  a  neutral 
state  might  sell  contraband  to  a  belligerent  state  at  their  own 
risk  but  that  British  subjects  might  be  held  liable  to  the  British 
"  Foreign  Enlistment  Acts." 

December  1st. 

Occupation  of  the  whole  of  203-Metre-Hill  on  the  30th  of  November 
at  8  p.m. 

December  3rd. 

A  local  truce  on  the  left  wing  of  the  Port  Arthur  Besieging  Army 
yesterday,  the  2nd,  from  10  a.m.  till  4  p.m.,  in  order  to  remove 
the  killed  and  wounded. 

December  Ifih. 

Banks  in  Berlin  subscribed  £20,000,000  towards  Russia's  new  war 
loan  and  banks  in  Paris  £30,000,000. 

December  7th. 

According  to  a  Reuter's  telegram,  under  date  London,  the  5th,  Lord 

Lansdowne  gave  instructions  to  the  authorities  of  Cardiff  on  the 

night  of  the  3rd  to  prohibit  coaling  to  German  steamers. 
On  the  6th,  at  4  p.m.,  the  Russians  in  Port  Arthur  sent  an  envoy 

to   our   army   and   proposed   a  truce   for   about   5    hours,   which 

received  our  agreement. 

i    December  10th. 

Our  cruiser  Sai-yen  sunk  by  a  mine  on  the  30th  of  November. 

December  11th. 

Telegrams  from  London  and  Berlin,  dated  the  9th  and  10th  re- 
spectively, reported  that  Russia's  Third  Squadron  will  start  for 
the  East  in  January  next  year. 

January  2nd,  1905. 

General  Stoessel  sent  to  General  Nogi  yesterday,  the  1st,  at  9  p.m., 
a  letter  proposing  the  surrender  of  Port  Arthur. 

Marshal  Yamagata  transmitted  to  General  Nogi  an  Imperial  order, 
permitting  General  Stoessel  to  retire  with  military  honours,  in 
appreciation  of  the  faithful  performance  of  his  duty. 


772  APPENDIX  III. 


January  3rd. 

The  Port  Arthur  Capitulation  Agreement  signed  yesterday,  the  2nd, 
at  4.35  p.m. 

January  9th. 

Receipt  of  Port  Arthur  prisoners  completed  on  the  7th,  of  which 
officers  numbered  878  and  non-commissioned  officers  and  men 
23,491. 

January  13th. 

Receipt  of  forts,  batteries,  warships,  steamers,  boats,  arms,  etc.  (and 
other  things)  at  Port  Arthur  completed  on  the  10th  of  this 
month. 

January  ljfth. 

On  the  11th,  the  enemy  advanced  on  Newchwang  but  were  driven 
back. 

January  30th. 

The  enemy  attacking  the  left  wing  of  our  army  were  driven  back 
yesterday,  the  29th,  and  our  army  occupied  Heikantai,  captur- 
ing 500  prisoners. 

February  3rd. 

The  fight  from  the  25th  to  the  29th  of  January  named  "  the  Battle 
in  the  Vicinity  of  Heikantai." 

February  18th. 

A  Reuter's  telegram  reported  the  departure  from  Libau  of  Russia's 

Third  Pacific  Squadron  on  the  15th  of  this  month. 
General  Bilderling  reported  to  have  succeeded  General  Kaulbars  as 

Commander  of  the  Russian  Third  Army. 

February  27th. 

Subscriptions   called   for  the   Fourth   Exchequer    Bonds. 

March  1st. 

The  Hull  Case  Inquiry  Commission  passed  its  report  on  the  25th 
of    February. 

March  11th. 

Mukden  occupied  yesterday,  the  10th,  at   10  a.m. 
The  fight,  from  the  last  of  February  till  the  middle  of  this  month 
named  "the  Battle  in  the  Vicinity  of  Mukden." 

March  17th. 

The   advanced  guard  of  our   army  occupied   Tiding  yesterday,  the 

16th. 
Our  Detached  Army  occupied  Hsing-ching  on  the  13th. 

March  21st. 

Another  detachment  occupied  Kai-yuen  on  the  19th. 

March  2Jtth. 

Another  detachment  entered   Chang- tu-fu  on  the  21st. 

March  26th. 

Announcement  of  floating  a  loan  of  £30,000,000  in  London  and  New 
York. 

April  5th. 

On  the  1st  of  this  month  101  prisoners  of  Russia's  Sanitary  Staff 
were  released  on  our  outpost  line. 


APPENDIX  III.  773 


April  9th. 

According  to  a  telegram  from  Singapore,  dated  yesterday,  the  8th, 
the  Baltic  Squadron  passed  off  that  port  on  that  day  at  3  p.m. 

April  21st. 

A  Berlin  telegram  reports  the  anchoring  of  the  Baltic  Squadron 
in  Kamranh  Bay  since  the  12th  of  this  month. 

April  28th. 

Publication  of  the  agreement  signed  on  the  1st  of  this  month  con- 
cerning the  transfer  for  trust  of  the  Korean  Communication 
System. 

May  1th. 

The  enemy's  torpedo  boats  appeared  off  Hokkaido  and  sank  one  of 
our  sailing  vessels. 

May  13th. 

Martial  law  proclaimed  throughout  Formosa  and  its  neighbouring 
sea,  except  the  Pescadores. 

May  27th. 

Our  Combined  Squadron  met,  attacked,  an'd  nearly  annihilated  Rus- 
sia's Second  Pacific  Squadron  off  Tsushima,  capturing  both  of 
the  enemy's  admirals. 

May  30th. 

The  battle  continued  from  the  27th  to  the  28th  on  the  sea  off 
Tsushima  named  "  the  Naval  Fight  of  the  Japan  Sea." 

June  1st. 

Publication  of  the  loss  of  our  warships  Yashima,  Akatsuki,  Haya- 
tori,    Oshima,  Atago,  and   Takasago. 

June  9th. 

The  President  of  the  United  States  of  America  recommended  to  both 
Japan  and  Russia  to  negotiate  for  peace. 

June  30th. 

The  crew  of  the  Kniaz  Botenkin,  one  of  Russia's  Black  Sea  Squad- 
ron, reported  to  have  hoisted  a  flag  of  rebellion. 

July  3rd. 

Baron  Komura,  Minister  for  Foreign  Affairs,  and  Mr.  Takahira, 
Minister  in  Washington,  appointed  Plenipotentiaries  for  Peace 
Negotiations,  Premier  Katsura  taking  charge  of  the  Foreign 
Office   for  the  time  being. 

July  8th. 

Baron  Komura  and  suite  started  for  Washington  by  the  Minnesota. 

July  11th. 

Our  Sakhalin  army  occupied  the  port  of  Korsakovsk  on  the  morn- 
ing of  the  8th  of  this  month. 

July  17th. 

Our  Sakhalin  Landing  Force  occupied  Vladimorovka  and  Blizine  on 
the  10th  of  this  month. 

July  28th. 

Our  Sakhalin  Landing  Force  occupied  Alkova  and  Dui  on  the  24th 
and  25th,  respectively. 

July  31st. 

Our  Sakhalin  Landing  Force  occupied  Luikoff  on  the  28th  of  this 
month. 


774  APPENDIX  IV. 


APPENDIX  IV. 
THE  TKEATY  OF  PEACE. 

OFFICIAL   TEXT. 

The  Treaty  of  Peace,  signed  at  Portsmouth  on  September  5,  was 
ratified  by  the  Emperors  of  Japan  and  Russia  on  the  14th  instant,  and 
was  published  here  this  afternoon  in  triple  texts  of  Japanese,  English, 
and  French.     The  following  is  the  English  text: 

His  Majesty  the  Emperor  of  Japan  on  the  one  part,  and  His  Majesty 
the  Emperor  of  all  the  Russias  on  the  other  part,  animated  by  the 
desire  to  restore  the  blessings  of  peace  to  Their  countries  and  peoples, 
have  resolved  to  conclude  a  Treaty  of  Peace,  and  have,  for  this  purpose, 
named  Their  Plenipotentiaries,  that  is  to  say: 

His  Majesty  the  Emperor  of  Japan: 

His  Excellency  Baron  Komura  Jutaro,  Jusammi,  Grand  Cordon  of  the 
Imperial  Order  of  the  Rising  Sun,  His  Minister  for  Foreign  Affairs,  and 

His  Excellency  M.  Takahira  Kogoro,  Jusammi,  Grand  Cordon  of  the 
Imperial  Order  of  the  Sacred  Treasure,  His  Envoy  Extraordinary  and 
Minister  Plenipotentiary  to  the  United  States  of  America; 

And  His  Majesty  the  Emperor  of  all  the  Russias: 

His  Excellency  M.  Serge  Witte,  His  Secretary  of  State  and  Presi- 
dent of  the  Committee  of  Ministers  of  the  Empire  of  Russia,  and 

His  Excellency  Baron  Roman  Rosen,  Master  of  the  Imperial  Court 
of  Russia  and  His  Ambassador  Extraordinary  and  Plenipotentiary  to 
the  United  States  of  America; 

Who,  after  having  exchanged  their  full  powers,  which  were  found 
to  be  in  good  and  due  form,  have  concluded  the  following  Articles: 

Art.  I.  There  shall  henceforth  be  peace  and  amity  between  Their 
Majesties  the  Emperor  of  Japan  and  the  Emperor  of  all  the  Russias 
and  between  Their  respective  States  and  subjects. 

Art.  II.  The  Imperial  Russian  Government,  acknowledging  that 
Japan  possesses  in  Korea  paramount  political,  military,  and  economical 
interests,  engage  neither  to  obstruct  nor  interfere  with  the  measures  of 
guidance,  protection,  and  control  which  the  Imperial  Government  of 
Japan  may  find  it  necessary  to  take  in  Korea. 

It  is  understood  that  Russian  subjects  in  Korea  shall  be  treated 
exactly  in  the  same  manner  as  the  subjects  or  citizens  of  other  foreign 
Powers,  that  is  to  say,  they  shall  be  placed  on  the  same  footing  as  the 
subjects  or  citizens  of  the  most  favoured  nation. 

It  is  also  agreed  that,  in  order  to  avoid  all  cause  of  misunderstand- 
ing, the  two  High  Contracting  Parties  will  abstain,  on  the  Russo-Korean 
frontier,  from  taking  any  military  measure  which  may  menace  the 
security  of  Russian  or  Korean  territory. 

Art.  III.     Japan  and  Russia  mutually  engage: 

1.  To  evacuate  completely  and  simultaneously  Manchuria,  except 
the  territory  affected  by  the  lease  of  the  Liao-tung  Peninsula,  in  con- 
formity with  the  provisions  of  additional  Art.  I.  annexed  to  this  Treaty ; 
and 

2.  To  restore  entirely  and  completely  to  the  exclusive  administra- 
tion of  China  all  portions  of  Manchuria  now  in  the  occupation  or 
under  the  control  of  the  Japanese  or  Russian  troops,  with  the  exception 
of  the  territory  above  mentioned. 


APPENDIX   IV.  775 


The  Imperial  Government  of  Russia  declare  that  they  have  not  in 
Manchuria  any  territorial  advantages  or  preferential  or  exclusive  con- 
cessions in  impairment  of  Chinese  sovereignty  or  inconsistent  with  the 
principle  of  equal  opportunity. 

Art.  IV.  Japan  and  Russia  reciprocally  engage  not  to  obstruct  any 
general  measures  common  to  all  countries,  which  China  may  take  for 
the  development  of  the  commerce  and  industry  of  Manchuria. 

Art.  V.  The  Imperial  Russian  Government  transfer  and  assign  to 
the  Imperial  Government  of  Japan,  with  the  consent  of  the  Government 
of  China,  the  lease  of  Port  Arthur,  Talien  and  adjacent  territory  and 
territorial  waters  and  all  rights,  privileges,  and  concessions  connected 
with  or  forming  part  of  such  lease,  and  they  also  transfer  and  assign 
to  the  Imperial  Government  of  Japan  all  public  works  and  properties 
in  the  territory  affected  by  the  above-mentioned  lease. 

The  two  High  Contracting  Parties  mutually  engage  to  obtain  the 
consent  of  the  Chinese  Government  mentioned  in  the  foregoing  stipu- 
lation. 

The  Imperial  Government  of  Japan  on  their  part  undertake  that 
the  proprietary  rights  of  Russian  subjects  in  the  territory  above  referred 
to  shall  be  perfectly  respected. 

Art.  VI.  The  Imperial  Russian  Government  engage  to  transfer  and 
assign  to  the  Imperial  Government  of  Japan,  without  compensation  and 
with  the  consent  of  the  Chinese  Government,  the  railway  between  Chang- 
chun (Kuan-cheng-tzu)  and  Port  Arthur  and  all  its  branches,  together 
with  all  rights,  privileges,  and  properties  appertaining  thereto  in  that 
region,  as  well  as  all  coal  mines  in  the  said  region  belonging  to  or 
worked  for  the  benefit  of  the  railway. 

The  two  High  Contracting  Parties  mutually  engage  to  obtain  the  con- 
sent of  the  Government  of  China  mentioned  in  the  foregoing  stipulation. 

Art.  VII.  Japan  and  Russia  engage  to  exploit  their  respective  rail- 
ways in  Manchuria  exclusively  for  commercial  and  industrial  purposes, 
and  in  nowise  for  strategic  purposes. 

It  is  understood  that  that  restriction  does  not  apply  to  the  railway 
in  the  territory  affected  by  the  lease  of  the  Liao-tung  Peninsula. 

Art.  VIII.  The  Imperial  Governments  of  Japan  and  Russia,  with 
a  view  to  promote  and  facilitate  intercourse  and  traffic,  will,  as  soon  as 
possible,  conclude  a  separate  convention  for  the  regulation  of  their  con- 
necting railway  services  in  Manchuria. 

Art.  IX.  The  Imperial  Russian  Government  cede  to  the  Imperial 
Government  of  Japan,  in  perpetuity  and  full  sovereignty,  the  southern 
portion  of  the  Island  of  Sakhalin  and  all  islands  adjacent  thereto,  and 
all  public  works  and  properties  thereon.  The  fiftieth  degree  of  north 
latitude  is  adopted  as  the  northern  boundary  of  the  ceded  territory. 
The  exact  alignment  of  such  territory  shall  be  determined  in  accordance 
with  the  provisions  of  additional  Art.  II.  annexed  to  this  Treaty. 

Japan  and  Russia  mutually  agree  not  to  construct  in  their  respective 
possessions  on  the  Island  of  Sakhalin  or  the  adjacent  islands,  any  forti- 
fications or  other  similar  military  works.  They  also  respectively  engage 
not  to  take  any  military  measures  which  may  impede  the  free  naviga- 
tion of  the  Straits  of  La  Perouse  and  Tartary. 

Art.  X.  It  is  reserved  to  the  Russian  subjects  inhabitants  of  the 
territory  ceded  to  Japan,  to  sell  their  real  property  and  retire  to  their 
country;  but,  if  they  prefer  to  remain  in  the  ceded  territory,  they  will 
be  maintained  and  protected  in  the  full  exercise  of  their  industries  and 
rights  of  property,  on  condition  of  submitting  to  Japanese  laws  and 
jurisdiction.  Japan  shall  have  full  liberty  to  withdraw  the  right  of 
residence  in,  or  to  deport  from,  such  territory  any  inhabitants  who  labour 
under  political  or  administrative  disability.  She  engages,  however,  that 
the  proprietary  rights  of  such  inhabitants  shall  be  fully  respected. 


776  APPENDIX   IV. 


Art.  XI.  Russia  engages  to  arrange  with  Japan  for  granting  to 
Japanese  subjects  rights  of  fishery  along  the  coasts  of  the  Russian  pos- 
sessions in  the  Japan,  Okhotsk,  and  Behring  Seas. 

It  is  agreed  that  the  foregoing  engagement  shall  not  affect  rights 
already  belonging  to  Russian  or  foreign  subjects  in  those  regions. 

Art.  XII.  The  Treaty  of  Commerce  and  Navigation  between  Japan 
and  Russia  having  been  annulled  by  the  war,  the  Imperial  Govern- 
ments of  Japan  and  Russia  engage  to  adopt  as  the  basis  of  their  com- 
mercial relations,  pending  the  conclusion  of  a  new  treaty  of  commerce 
and  navigation  on  the  basis  of  the  Treaty  which  was  in  force  previous 
to  the  present  war,  the  system  of  reciprocal  treatment  on  the  footing 
of  the  most  favoured  nation,  in  which  are  included  import  and  export 
duties,  customs  formalities,  transit  and  tonnage  dues,  and  the  admission 
and  treatment  of  the  agents,  subjects,  and  vessels  of  one  country  in  the 
territories  of  the  other. 

Art.  XIII.  As  soon  as  possible  after  the  present  Treaty  comes  into 
force,  all  prisoners  of  war  shall  be  reciprocally  restored.  The  Imperial 
Governments  of  Japan  and  Russia  shall  each  appoint  a  special  Com- 
missioner to  take  charge  of  prisoners.  All  prisoners  in  the  hands  of 
one  Government  shall  be  delivered  to  and  received  by  the  Commissioner 
of  the  other  Government  or  by  his  duly  authorised  representative,  in 
such  convenient  numbers  and  at  such  convenient  ports  of  the  delivering 
State  as  such  delivering  State  shall  notify  in  advance  to  the  Commis- 
sioner of  the  receiving  State. 

The  Governments  of  Japan  and  Russia  shall  present  to  each  other, 
as  soon  as  possible  after  the  delivery  of  prisoners  has  been  completed, 
a  statement  of  the  direct  expenditures  respectively  incurred  by  them 
for  the  care  and  maintenance  of  prisoners  from  the  date  of  capture  or 
surrender  up  to  the  time  of  death  or  delivery.  Russia  engages  to  repay 
to  Japan,  as  soon  as  possible  after  the  exchange  of  the  statements  as 
above  provided,  the  difference  between  the  actual  amount  so  expended 
by  Japan  and  the  actual  amount  similarly  disbursed  by  Russia. 

Art.  XIV.  The  present  Treaty  shall  be  ratified  by  Their  Majesties 
the  Emperor  of  Japan  and  the  Emperor  of  all  the  Russias.  Such  rati- 
fication shall,  with  as  little  delay  as  possible,  and  in  any  case  not  later 
than  fifty  days  from  the  date  of  the  signature  of  the  Treaty,  be  an- 
nounced to  the  Imperial  Governments  of  Japan  and  Russia  respectively 
through  the  French  Minister  in  Tokio  and  the  Ambassador  of  the  United 
States  in  Saint  Petersburg,  and  from  the  date  of  the  later  of  such  an- 
nouncements this  Treaty  shall  in  all  its  parts  come  into  full  force. 

The  formal  exchange  of  the  ratifications  shall  take  place  at  Wash- 
ington as  soon  as  possible. 

Art.  XV.  The  present  Treaty  shall  be  signed  in  duplicate  in  both 
the  English  and  French  languages.  The  texts  are  in  absolute  conform- 
ity, but  in  case  of  discrepancy  in  interpretation,  the  French  text  shall 
prevail. 

In  witness  whereof  the  respective  Plenipotentiaries  have  signed  and 
affixed  their  seals  to  the  present  Treaty  of  Peace. 

Done  at  Portsmouth  (New  Hampshire)  this  fifth  day  of  the  ninth 
month  of  the  thirty-eighth  year  of  Meiji,  corresponding  to  the  twenty- 
third  day  of  August  (fifth  September),  one  thousand  nine  hundred  and 
five. 

(Signed)     Serge  Witte.  [l.  s.] 

(Signed)     Rosen.  [l.  s.] 

(Signed)     Jutaro  Komura.     [l.  s.] 
(Signed)     K.  Takahira.  [l.  s.] 


APPENDIX  IV.  777 


Supplementary  Agreement. 

In  conformity  with  the  provisions  of  Arts.  III.  and  IX.  of  the  Treaty 
of  Peace  between  Japan  and  Russia  of  this  date,  the  undersigned  Pleni- 
potentiaries have  concluded  the  following  additional  Articles: 

I.  To  Article  III. 

The  Imperial  Governments  of  Japan  and  Russia  mutually  engage  to 
commence  the  withdrawal  of  their  military  forces  from  the  territory  of 
Manchuria  simultaneously  and  immediately  after  the  Treaty  of  Peace 
comes  into  operation,  and  within  a  period  of  eighteen  months  from  that 
date  the  Armies  of  the  two  countries  shall  be  completely  withdrawn 
from  Manchuria,  except  from  the  leased  territory  of  the  Liao-tung 
Peninsula. 

The  forces  of  the  two  countries  occupying  the  front  positions  shall 
be  first  withdrawn. 

The  High  Contracting  Parties  reserve  to  themselves  the  right  to 
maintain  guards  to  protect  their  respective  railway  lines  in  Manchuria. 
The  number  of  such  guards  shall  not  exceed  fifteen  per  kilometre,  and 
within  that  maximum  number  the  Commanders  of  the  Japanese  and 
Russian  Armies  shall,  by  common  accord,  fix  the  number  of  such  guards 
to  be  employed,  as  small  as  possible,  having  in  view  the  actual  re- 
quirements. 

The  Commanders  of  the  Japanese  and  Russian  forces  in  Manchuria 
shall  agree  upon  the  details  of  the  evacuation  in  conformity  with  the 
above  principles,  and  shall  take  by  common  accord  the  measures  neces- 
sary to  carry  out  the  evacuation  as  soon  as  possible,  and  in  any  case 
not  later  than  the  period  of  eighteen  months. 

II.  To  Article  IX. 

As  soon  as  possible  after  the  present  Treaty  comes  into  force,  a 
Commission  of  Delimitation,  composed  of  an  equal  number  of  members 
to  be  appointed  respectively  by  the  two  High  Contracting  Parties,  shall 
on  the  spot  mark  in  a  permanent  manner  the  exact  boundary  between 
the  Japanese  and  Russian  possessions  on  the  Island  of  Sakhalin.  The 
Commission  shall  be  bound,  so  far  as  topographical  considerations  per- 
mit, to  follow  the  fiftieth  parallel  of  north  latitude  as  the  boundary 
line,  and  in  case  any  deflections  from  that  line  at  any  points  are  found 
to  be  necessary,  compensation  will  be  made  by  correlative  deflections  at 
other  points.  It  shall  also  be  the  duty  of  the  said  Commission  to  pre- 
pare a  list  and  description  of  the  adjacent  islands  included  in  the 
cession ;  and,  finally,  the  Commission  shall  prepare  and  sign  maps  show- 
ing the  boundaries  of  the  ceded  territory.  The  work  of  the  Commis- 
sion shall  be  subject  to  the  approval  of  the  High  Contracting  Parties. 

The  foregoing  additional  Articles  are  to  be  considered  as  ratified 
with  the  ratification  of  the  Treaty  of  Peace  to  which  they  are  annexed. 

Portsmouth,  the  5th  day,  9th  month,  38th  year  of  Meiji,  correspond- 
ing to  the  23rd  August  (5th  September),  1905. 

(Signed)     Serge  Witte. 
(Signed)     Rosen. 
(Signed)     Jutaro  Komura. 
(Signed)     K.   Takahira. 

It  is  officially  announced  that  the  ratifications  of  the  Russo-Japanese 
Peace  Treaty  were  exchanged  at  Washington,  between  Mr.  Takahira  and 
Baron  Rosen,  on  the  25th  inst. 


778  APPENDIX   V. 


APPENDIX  V. 

JAPANESE  KEGULATIONS  GOVEKNING  CAPTUEES 

AT  SEA. 


Regulations  governing  captures  at  sea  have  been  settled  as  follows, 
and  shall  be  enforced  from  the  fifteenth  day  of  the  third  month  of  the 
thirty-seventh  year  of  Meiji    (March    15,    1904). 

General  Headquarters, 
Seventh  day  of  the  third  month  of  the  thirty-seventh  year  of  Meiji. 

REGULATIONS  GOVERNING  CAPTURES  AT  SEA. 
Chapter  I. — General  Rules. 

Article  I.  H.  I.  J.  M.'s  ships  are  authorised  in  time  of  war  to 
visit,  search,  and  capture  vessels  according  to  these  regulations. 

Art.  II.  No  visit,  search,  or  capture  shall  be  made  in  neutral 
waters  nor  in  waters  clearly  placed  by  treaty  stipulations  outside  the 
zone  of  hostile  operations. 

Art.  III.  The  national  character  of  a  person  shall  be  decided  by 
the  place  of  his  actual  residence,  whatever  his  nationality  may  be. 

Art.  IV.  By  the  place  of  residence  is  meant  the  place  where  a  per- 
son permanently  lives;  in  the  case  of  a  merchant,  the  place  where  he 
principally  carries  on  his  business ;  and  in  the  case  of  a  consul  who  is 
engaged  in  mercantile  business,  the  place  where  he  carried  on  that 
business. 

Art.  V.  The  district  temporarily  occupied  by  the  enemy  shall  not 
be  considered  enemy  territory  in  respect  to  the  national  character  of 
persons,  ships,  and  their  cargoes. 

Art.  VI.     The  following  are  enemy  vessels: 

1.  Vessels  employed  by  the  enemy,  including  the  case  in  which 
such   employment  is   compulsory. 

2.  Vessels  voyaging  under  the  enemy's  flag  or  with  licence  of  the 
enemy. 

3.  Vessels,  the  whole  or  part  of  which  is  owned  by  the  enemy  State 
or  its  subjects.  Vessels  that  have  certificates  of  nationality  as  Japa- 
nese, or  that  voyage  under  the  licence  of  Japan,  do  not,  however  come 
under  this  rule. 

4.  Vessels,  the  ownership  of  which  has  been  transferred  before  the 
war,  but  in  expectation  of  its  outbreak  or  during  the  war,  by  the 
enemy  State  or  its  subjects  to  persons  having  residence  in  Japan  or  a 
neutral  State,  unless  there  is  proof  of  a  complete  and  bona  fide  trans- 
fer of  ownership. 

In  case  the  ownership  of  a  vessel  is  transferred  during  its  voyage, 
and  actual  delivery  is  not  effected,  such  transfer  of  ownership  shall 
not  be  considered  as  complete  and  bona  fide. 

Art.  VII.  Japanese  vessels  are  those  which  are  mentioned  below 
and  which  do  not  come  under  the  preceding  article: 

1.  Those  which  have  the  certificate  of  nationality  of  the  Empire  or 
those  which  voyage  under  the  licence  of  the  Imperial  Government. 

2.  Vessels  owned  by  persons  who  have  residence  in  the  Empire. 

3.  A  vessel,  the  ownership  of  which  has  been  transferred  before  the 
war  but  in  expectation  of  its  outbreak  or  during  the  war  by  a  person 


APPENDIX  V.  779 


who  has  residence  in  the  Empire  to  a  person  who  has  residence  in  a 
neutral  State,  unless  there  is  proof  of  a  bona  fide  and  complete  trans- 
fer of  the  ownership  of  the  vessel. 

In  case  the  ownership  of  a  vessel  is  transferred  during  its  voyage, 
and  its  delivery  is  not  effected,  such  transfer  shall  not  be  considered 
as  bona  fide  and  complete. 

Art.  VIII.  The  national  character  of  a  cargo  shall  be  decided  by 
the  national  character  of  the  owner. 

Art.  IX.  In  the  following  cases  the  cargo  shall  be  considered 
enemy  property,   in   spite  of  the  above  regulations: 

1.  A  cargo  consigned  before  the  war  but  in  expectation  of  its  out- 
break or  during  the  war  by  a  person  who  has  residence  in  the  Empire 
or  in  a  neutral  State  or  by  his  representative  to  the  enemy  State  or 
to  a  subject  of  the  enemy  State  or  to  his  representative. 

2.  A  cargo,  the  ownership  of  which  has  been  transferred  before  the 
war  but  in  expectation  of  its  outbreak  or  during  the  war  by  the  enemy 
State  or  its  subject  to  a  person  who  has  a  residence  in  the  Empire  or 
in  a  neutral  State,  unless  there  is  proof  of  full  and  bona  fide  transfer. 

In  case  the  ownership  of  a  cargo  is  transferred  during  a  voyage, 
and  actual  delivery  is  not  effected,  such  transfer  shall  not  be  consid- 
ered bona  fide  and  full. 

Art.  X.  Concerning  matters  not  provided  for  in  the  law,  treaties, 
and  these  regulations,  the  rules  of  International  Law  shall  be  applied. 

Chapter  II. — Contraband  Persons,  Papers,  and  Goods. 

Art.  XI.  Contraband  persons  are  the  enemy's  military  men  and 
others  who  are  being  transported  to  be  employed  for  hostile  purposes. 

Art.  XII.  Contraband  papers  are  all  official  correspondence  of  the 
officers  of  the  enemy's  Government. 

Official  correspondence  between  the  enemy's  Government  and  its 
ministers  and  consuls  residing  in  neutral  States,  and  official  corre- 
spondence between  the  enemy's  Government  and  the  Government  of 
neutral  States  are  not,  however,  contraband. 

Art.  XIII.  The  following  goods  are  contraband  of  war  when  they 
are  destined  to  the  enemy's  territory  or  to  the  enemy's  army  or  navy: 

Arms,  ammunition,  explosives,  and  materials  (including  also  lead, 
saltpetre,  sulphur,  etc.),  and  machines  for  manufacturing  them, 
cement,  uniforms  and  equipment  for  army  and  navy,  armor  plates, 
materials  for  building  ships  and  their  equipments,  and  all  articles  to 
be  used  solely  for  hostile  purposes. 

Art.  XIV.  The  following  goods  are  contraband  of  war  in  case  they 
are  destined  to  the  enemy's  army  or  navy,  or  in  case  they  are  destined 
to  the  enemy's  territory  and  from  the  landing  place  it  can  be  inferred 
that  they  are  intended  for  military  purposes: 

Provisions  and  drinks,  clothing  and  materials  for  clothing,1  horses, 
harnesses,  fodder,  wheeled  vehicles,  coal,  and  other  kinds  of  fuel,1  tim- 
ber, currency,  gold  and  silver  bullion,  materials  for  telegraph,  tele- 
phone, and  railroad. 

Art.  XV.  The  destination  of  a  vessel  is  generally  considered  as 
also  the  destination  of  her  cargo. 

Art.  XVI.  In  case  a  vessel  is  bound  for  a  place  not  in  the  enemy's 
territory,  but  if  her  intermediate  port  of  call' is  an  enemy's  port,  or  in 
case  there  is  reason  to  believe  the  vessel  is  to  meet  enemy's  ships 
during  the  voyage,  the  destination  of  such  vessels  shall  be  considered 
as  enemy's  territory. 

1  The  words  in  italics  were  added  to  the  Regulations  by  an  amendment  of  February 
9,  1905. 


780  APPENDIX  V. 


Art.  XVII.  If  a  vessel  bound  for  a  port  not  in  the  enemy's 
territory  carries  a  cargo  which  there  is  reason  to  believe  is  to  be 
transported  to  the  enemy's  territory,  such  voyage  shall  be  consid- 
ered as  continuous  and  the  ship  as  destined  to  the  enemy's  territory 
from  the  first,  whether  she  arrive  at  the  port  and  land  her  cargo 
or  not. 

Art.  XVIII.  Of  the  goods  mentioned  in  Arts.  XIII.  and  XIV.,  if 
it  is  clear  from  their  quantity  and  quality  that  they  are  intended  for 
the  vessel's  own  use,  such  goods  shall  not  be  considered  contraband 
of  war. 

Art.  XIX.  If  any  vessel  is  suspected  to  have  in  her  cargo  contra- 
band of  war  the  captain  of  the  war  vessel  shall  inspect  the  bill  of  lad- 
ing, clearance,  and  other  papers,  interrogate  the  crew  of  the  vessel, 
and  ascertain  her  destination. 

Chapter   III. — Ship's   Papers. 

Art.  XX.  Ship's  papers  generally  consist  of  the  following  docu- 
ments : 

1.  Certificate  of  Nationality  of  the  Vessel. — This  document  is  a 
certificate  issued  by  the  register  officer  of  the  port  where  the  vessel  is 
registered,  and  generally  contains  the  name  and  tonnage  of  the  vessel, 
the  name  of  the  master,  details  of  how  the  vessel  came  into  the  pos- 
session of  the  present  owner,  and  the  name,  nationality,  etc.,  of  the 
registered  owner. 

2.  Passport. — This  document  is  a  demand  issued  by  the  govern- 
ment of  the  country  to  which  the  vessel  belongs,  that  the  vessel  with 
her  crew,  passengers,  goods,  and  merchandise  shall  be  allowed  free  pas- 
sage without  any  hindrance,  and  generally  contains  the  name  and  resi- 
dence of  the  master,  the  name,  construction,  and  destination  of  the 
vessel. 

3.  Permit  for  Navigation. — This  document  is  issued  by  the  officers 
of  the  port  where  the  vessel  fitted  out  for  the  voyage,  and  gives  her  the 
right  to  navigate,  carrying  the  flag  and  passport  of  the  country  to 
which  she  belongs.  The  document  generally  contains  the  nature, 
quantity,  and  owner  of  the  cargo,  and  the  place  of  destination. 

4.  Charter  Party. — This  is  a  contract  entered  into  by  the  owner 
or  master  of  a  vessel  and  the  person  who  charters  her  concerning  the 
hire  of  the  whole  or  part  of  the  vessel,  and  generally  contains  the  name 
of  the  master,  the  name  and  construction  of  the  vessel,  the  port  where 
she  is  lying  when  chartered,  the  name  and  residence  of  the  person 
who  chartered  her,  the  nature  of  the  cargo,  the  ports  where  it  is  to  be 
loaded  and  unloaded,  and  the  freightage. 

5.  Log-book. — This  is  a  journal  kept  by  the  master  of  the  vessel  in 
accordance  with  the  regulations  of  the  country  to  which  she  belongs. 

6.  Ship's  Journal. — This  is  a  journal  kept  by  the  master  of  the 
vessel  to  make  report  to  her  owner. 

7.  Contract  with  the  Shipbuilder. — This  document  must  be  carried 
by  a  vessel  while  there  is  no  change  in  ownership  since  her  completion, 
and  is  used  to  prove  her  nationality  in  case  there  is  no  passport,  per- 
mit for  navigation,  or  certificate  of  nationality. 

8.  Assignment. — This  document  proves  that  the  ownership  of  a 
vessel  has  been  transferred  to  the  purchaser. 

9.  Bills  of  Lading. — These  are  generally  made  separately  for  goods 
of  different  shippers.  Those  remaining  on  board  are  duplicates  of  those 
which  the  master  has  given  to  the  shippers.  A  bill  of  lading  contains 
the  name  of  the  shipper,  date  and  place  of  loading,  the  name  and 
destination  of  the  vessel,  the  nature,  quantity,  destination,  and  freight- 
age of  the  goods. 


APPENDIX  V.  781 


10.  Invoice. — An  invoice  always  accompanies  goods  and  contains 
details  of  each  bale  of  goods,  the  price,  freightage,  custom  duty,  and 
other  charges  and  expenses,  and  the  names  and  residences  of  the  con- 
signor and  consignee. 

11.  Freight  List. — This  contains  the  names  of  the  consignor  and 
consignee,  the  mark  and  number  of  each  bale,  quantity  of  goods  in  each 
bale  in  detail,  and  accounts  of  freightage  corresponding  to  the  bill  of 
lading,  and  signed  generally  by  an  agent  who  manages  clearance  of 
vessels,  and   by  the  master. 

12.  Clearance. — This  is  issued  by  the  officer  of  the  custom-house 
which  the  vessel  left  last,  and  proves  that  the  custom  duty  has  been 
paid.     It  also  contains  the  destination  of  the  vessel  and  her  cargo. 

13.  Muster  Roll. — This  contains  the  names  of  the  crew,  with  their 
ages,  duties,  residences,  and  places  of  birth. 

14.  Shipping  Papers. — This  is  a  contract  signed  by  every  member 
of  the  crew,  with  details  of  the  limits  of  the  voyage  and  the  period  of 
hire    contracted. 

15.  Bill  of  Health. — This  is  a  certificate  testifying  that  there  has 
been  no  contagious  disease  prevailing  in  the  port  which  the  vessel  left 
and  that  there  has  been  no  case  of  such  disease  on  board  the  vessel. 

Chapter  IV. — Blockade. 

Art.  XXI.  Blockade  is  to  close  an  enemy's  port,  bay,  or  coast  with 
force,  and  is  effective  when  the  force  is  strong  enough  to  threaten  any 
vessels  that  attempt  to  go  in  or  out  of  the  blockaded  port  or  bay  or  to 
approach  the  blockaded  coast. 

Temporary  evacuation  of  a  blockaded  area  by  a  squadron  or  man- 
of-war  on  account  of  bad  weather  or  to  attain  the  object  of  the  block- 
ade does  not  interfere  with  the  effectiveness  of  the  blockade. 

Art.  XXII.  When  a  blockade  is  instituted  the  commanding  officer 
of  the  squadron  or  man-of-war  shall  issue  a  declaration  of  blockade  by 
filling  out  Form  I  with  the  area  of  blockade  and  the  date  of  the  declara- 
tion. 

Art.  XXIII.  When  enforcing  a  new  blockade  after  former  block- 
ade has  lost  its  effectiveness,  or  when  there  is  change  in  the  area  of 
blockade,  a  new  declaration  must  be  made  according  to  the  preceding 
article. 

Art.  XXIV.  WThen  the  commanding  officer  of  a  squadron  or  a  man- 
of-war  declares  a  blockade,  he  shall  take  the  following  steps: 

1.  He  shall  report  the  declaration  of  the  blockade  to  the  minister 
of  the  navy. 

2.  He  shall  report  the  declaration  of  the  blockade  to  every  Japa- 
nese minister  residing  in  the  countries  near  the  blockaded  area,  and 
shall  request  him  to  inform  the  Government  of  the  country  and  all 
the  foreign  ministers  and  consuls  residing  in  the  country  to  which  he 
is  accredited  of  the  establishment  of  the  blockade. 

3.  He  shall  communicate  the  declaration  of  the  blockade  to  all 
the  foreign  consuls  residing  in  neutral  districts  in  the  neighbourhood 
of  the  blockaded  area,  and  shall  take  any  other  measures  necessary  to 
make  known  the  fact  of  the  blockade. 

4.  He  shall  inform  as  far  as  possible,  by  means  of  a  flag  of  truce, 
the  proper  officers  and  consuls  of  neutral  countries  residing  within  the 
blockaded  area,  of  the  declaration  of  the  blockade. 

Art.  XXV.  In  case  the  master  of  a  vessel  receives  warning  direct 
from  an  imperial  war  vessel,  or  it  is  clear  that  he  knows  of  the  exist- 
ence of  the  blockade  from  official  or  private  information  or  from  any 
other  source,  such  master  shall  be  considered  to  have  received  actual 
notice  of  the  blockade. 


782  APPENDIX  V. 


Art.  XXVI.  In  the  following  cases  it  shall  be  deemed  that  notice 
of  the  declaration  of  the  blockade  has  been  received: 

1.  The  case  in  which  the  master  of  a  vessel  is  considered  to  have 
received  a  notice  of  the  blockade  whether  he  has  actually  received  it 
or  not,  such  notice  having  been  sent  to  the  proper  authorities  of  the 
country  to  which  the  vessel  belongs,  and  there  having  elapsed  a  suf- 
ficient time  for  the  authorities  to  notify  the  residents  of  their  nation- 
ality. 

2.  The  case  in  which  the  master  of  a  vessel  is  considered  to  have 
received  a  notice  of  the  blockade,  the  fact  of  the  blockade  having  been 
made  public. 

Art.  XXVII.  The  following  vessels  shall  be  considered  to  have 
broken  through  a  blockade  outward: 

1.  A  vessel  that  has  issued  out  of  the  blockaded  area  or  has  at- 
tempted to  do  so. 

2.  A  vessel  that  has  transshipped  outside  the  blockaded  area  the 
cargo  of  a  vessel  that  has  broken  through  a  blockade  outward,  or  has 
attempted  to  make  such  transshipment. 

Art.  XXVIII.  In  any  of  the  following  cases  the  preceding  article 
shall  not  be  applied: 

1.  When  a  vessel  comes  out  of  the  blockade  area,  having  a  permit 
from  the  Imperial  Government  or  from  the  commanding  officer  of  the 
squadron  or  war  vessel  on  duty  of  blockade. 

2.  When  a  vessel  which  entered  the  blockaded  port  during  the 
existence  of  the  blockade,  having  received  no  notice  of  the  fact,  sails 
out  of  the  port  without  any  cargo. 

3.  When  a  vessel  which  was  in  the  port  at  the  time  of  the  declara- 
tion of  the  blockade  sails  out  of  the  port  without  any  cargo. 

4.  When  a  vessel  which  was  in  the  port  and  was  loaded  before  the 
declaration  of  the  blockade  sails  out. 

Art.  XXIX.  Any  vessel  which  has  received  notification  of  a  block- 
ade shall  be  considered  to  have  violated  the  blockade  inward  in  the 
following  cases: 

1.  When  such  vessel  has  passed  into  the  blockaded  area  or  has 
attempted  to  do  so. 

2.  When  such  vessel,  lying  in  the  neighbourhood  of  the  blockaded 
area,  is  considered  to  be  steering  into  the  area,  no  matter  what  port  of 
destination   is  mentioned   in  the   ship's   papers. 

3.  When  such  vessel  has  transported  or  attempted  to  transport 
cargo  to  a  blockaded  place,  by  transshipping  to  another  vessel  outside 
of  the  blockaded  area  in  order  that  the  latter  may  pass  the  line  of 
blockade. 

4.  When  such  vessel  is  bound  for  the  blockaded  port. 

Art.  XXX.  To  vessels  coming  under  one  of  the  following  heads, 
the  preceding  article  shall  not  apply: 

1.  When  a  vessel  has  permission  of  the  Imperial  Government  or  of 
the  commanding  officer  of  the  blockading  squadron  or  man-of-war. 

2.  When  the  master  of  the  vessel  has  ventured  to  make  a  blockaded 
port  his  destination  anticipating  termination  of  the  blockade  and  in- 
tending to  steer  for  another  port  in  case  the  blockade  is  still  in  force, 
or  when  there  are  extenuating  circumstances  and  the  vessel  comes  from 
a  very  distant  place. 

3.  When  it  is  clear  that  the  master  of  a  vessel  bound  for  a  block- 
aded port  has  abandoned  the  idea  of  reaching  that  port. 

4.  When  a  vessel  enters  a  blockaded  area,  it  having  become  neces- 
sary to  put  into  port  from  want  of  provisions,  rough  weather,  or  any 
other  unavoidable  circumstances,  and  there  being  no  other  port  or  bay 
to  put  in. 

Art,  XXXI.     When  a  blockade  is  discontinued  the  commanding  of- 


APPENDIX  V.  783 


fieer  of  the  squadron  or  the  man-of-war  shall  immediately  report  it 
to  the  minister  of  the  navy  and  shall  take  necessary  steps  to  make  it 
generally  known. 

Chapter  V.— Visit,  Search,  and  Capture. 

Art.  XXXII.  Any  private  vessel  regarding  which  there  is  suspi- 
cion which  would  justify  her  capture  shall  be  visited  and  searched  no 
matter  of  what  national  character  she  is. 

Art.  XXXIII.  A  neutral  vessel  under  convoy  of  a  war  vessel  of 
her  country  shall  not  be  visited  nor  searched  if  the  commanding  officer 
of  the  convoying  war  vessel  presents  a  declaration  signed  by  himself 
stating  that  there  is  on  board  the  vessel  no  person,  document,  or  goods 
that  are  contraband  of  war,  and  that  all  the  ship's  papers  are  perfect, 
and  stating  also  the  last  port  which  the  vessel  left  and  her  destination. 
In  case  of  grave  suspicion,  however,  this  rule  does  not  apply. 

Art.  XXXIV.  In  visiting  or  searching  a  neutral  mail  ship  if  the 
mail  officer  of  the  neutral  country  on  board  the  ship  swears  in  a  written 
document  that  there  are  no  contraband  papers  in  certain  mail  bags 
those  mail  bags  shall  not  be  searched.  In  case  of  grave  suspicion, 
however,  this  rule  does  not  apply. 

Art.  XXXV.  All  enemy  vessels  shall  be  captured.  Vessels  belong- 
ing to  one  of  the  following  categories,  however,  shall  be  exempted  from 
capture  if  it  is  clear  that  they  are  employed  solely  for  the  industry  or 
undertaking  for  which  they  are  intended: 

1.  Vessels  employed  for  coast  fishery. 

2.  Vessels  making  voyage  for  scientific,  philanthropic,  or  religious 
purposes. 

3.  Light-house  vessels  and  tenders. 

4.  Vessels  employed  for  exchange  of  prisoners. 

Art.  XXXVI.  Any  vessel  of  the  Empire  which  carries  on  com- 
merce with  the  enemy  state  or  its  subjects  or  makes  voyage  with  such 
intention  shall  be  captured,  unless  such  vessel  has  no  knowledge  of  the 
outbreak  of  war  or  has  permission  from  the  Imperial  Government. 

Art.  XXXVII.  Any  vessel  that  comes  under  one  of  the  following 
categories  shall  be  captured,  no  matter  of  what  national  character  it  is: 

1.  Vessels  that  carry  persons,  papers,  or  goods  that  are  contraband 
of  war. 

2.  Vessels  that  carry  no  ship's  papers,  or  have  wilfully  mutilated 
or  thrown  them  away,  or  hidden  them,  or  that  produce  false  papers. 

3.  Vessels  that  have  violated  a  blockade. 

4.  Vessels  that  are  deemed  to  have  been  fitted  out  for  the  enemy's 
military  service. 

5.  Vessels  that  engage  in  scouting  or  carry  information  in  the 
interest  of  the  enemy,  or  are  deemed  clearly  guilty  of  any  other  act 
to  assist  the  enemy. 

6.  Vessels  that  oppose  visitation  or  search. 

7.  Vessels  voyaging  under  the  convoy  of  an  enemy's  man-of-war. 
Art.  XXXVIII.     Vessels    carrying    contraband    persons,    papers,    or 

goods,  but  which  do  not  know  the  outbreak  of  war  shall  be  exempt 
from  capture. 

The  fact  that  the  master  of  a  vessel  does  not  know  the  persons, 
papers,  or  goods  on  board  to  be  contraband  of  war,  or  that  he  took 
them  on  board  under  compulsion,  shall  not  exempt  the  vessel  from 
capture. 

Art.  XXXIX.  Vessels  that  come  under  one  of  the  following  cases 
may  be  captured  no  matter  of  what  national  character  they  are: 

1.  When  a  vessel  does  not  produce  the  necessary  papers  or  they  are 
not  kept  in  good  order. 


784  APPENDIX  V. 


2.  When  there  are  contradictions  among  the  ship's  papers  or  be- 
tween the  statements  of  the  master  and  the  ship's  papers. 

3.  Besides  the  above  two  cases,  when  as  the  result  of  visitation  or 
search  there  is  sufficient  suspicion  to  justify  capture  according  to 
articles  from  XXXV.  to  XXXVII. 

Chapteb   VI. — Disposition   of   Captured   Vessels   and  their   Cargo   and 
Persons  on  Board. 

Art.  XL.     Enemy  vessels  shall  be  forfeited. 

Of  the  cargo  on  board,  mentioned  in  the  above  clause,  enemy  goods 
shall  be  forfeited.  In  case  of  an  armed  vessel,  however,  the  whole 
cargo  shall  be  forfeited. 

Art.  XLI.  Japanese  vessels  which  carry  on  commerce  with  the 
enemy  state  or  its  subjects  or  which  are  making  voyage  with  such 
intention  shall  be  forfeited. 

Of  the  cargo  on  board  the  vessels  mentioned  in  the  above  clause, 
all  the  goods  owned  by  the  owners  of  the  vessels  and  all  the  enemy 
goods  shall  be  forfeited. 

Art.  XLII.  Contraband  persons  shall  be  made  prisoners  and  con- 
traband papers  shall  be   forfeited. 

Any  vessel  carrying  contraband  persons  or  papers  and  the  goods  on 
board  which  belong  to  the  owner  of  such  vessel,  shall  be  forfeited, 
unless  the  captain  proves  that  not  by  his  own  fault  he  is  unacquainted 
with  the  fact. 

Art.  XLIII.  Contraband  goods  and  all  goods  on  board  belonging 
to  the  owner  of  the  contraband  shall  be  forfeited. 

When  the  owner  of  a  vessel  carrying  contraband  is  also  the  owner 
of  the  contraband  goods,  the  vessel  shall  be  forfeited. 

Art.  XLIV.  A  vessel  which  has  taken  in  contraband  goods,  using 
deceitful  means,  and  all  the  goods  on  board  belonging  to  the  owner  of 
such  vessel,  shall  be  forfeited. 

Art.  XLV.  A  vessel  that  has  broken  through  a  blockade  and  her 
cargo  shall  be  forfeited.  If  the  owner  of  the  cargo  proves  that  he  is 
innocent  of  such  breach  of  blockade,  such  cargo  shall  be  released. 

Art.  XLVI.  Vessels  that  are  recognised  to  have  been  fitted  out 
for  the  enemy  for  military  purposes,  and  the  goods  belonging  to  the 
owners  of  such  vessels,  shall  be  confiscated. 

Art.  XL VII.  Vessels  ascertained  to  have  scouted  or  carried  in- 
formation to  give  benefit  to  the  enemy  or  to  have  done  any  other  acts 
to  assist  him,  and  all  goods  belonging  to  the  owners  of  such  vessels, 
shall   be    confiscated. 

Art.  XLVIII.  Vessels  that  have  opposed  visit  or  search,  and  all 
the  goods  belonging  to  the  owners  of  such  vessels,  shall  be  forfeited. 

Art.  XLIX.  Vessels  voyaging  under  convoy  of  the  enemy's  men- 
of-war,  and  all  goods  belonging  to  the  owners  of  such  vessels,  shall  be 
forfeited. 

Art.  L.  The  masters  and  crews  of  enemy's  merchant  vessels  may 
be  made  prisoners. 

Passengers,  and  the  master  and  crew  of  a  vessel  not  enemy,  shall 
not  be  made  prisoners.  In  case  it  is  necessary  to  call  them  as  wit- 
nesses they  may  be  detained.   ' 

Chapter  VII.— Procedure  in  Capturing  Vessels. 

Art.  LI.  In  visiting  or  searching  a  vessel  the  captain  of  the  man- 
of-war  shall  take  care  not  to  divert  her  from  her  original  course  more 
than  necessary  and  as  far  as  possible  not  to  give  her  inconvenience. 

Art.  LII.     The  captain  of  an  Imperial  man-of-war  may  chase  a  ves- 


APPENDIX  V.  785 


sel  without  hoisting  the  ensign  of  the  Imperial  navy  or  under  false 
colors.  But  before  giving  the  vessel  the  order  to  stop  he  must  display 
the  ensign  of  the  Imperial  navy. 

Art.  L1II.  The  captain  of  an  Imperial  man-of-war  shall  in  no  case 
order  the  vessel  to  be  visited  or  searched  to  send  to  his  ship  her  boat, 
crew,  or  papers. 

Art.  LIV.  The  captain  of  the  man-of-war  shall  first  communicate 
by  signal  flag  or  steam  whistle  his  intention  to  visit  the  vessel.  At 
night  he  shall  display  a  white  light  above  the  ensign  in  place  of  the 
signal  flag. 

In  case  it  is  impossible  on  account  of  bad  weather  to  communicate 
his  intention  by  any  of  the  means  mentioned  above,  or  in  case  the 
vessel  does  not  make  any  response  to  the  above  signals,  he  shall  give 
order  to  stop  by  firing  two  blank  cartridges,  and  if  there  is  further 
necessity,  by  firing  a  shot  ahead  of  the  vessel. 

If  after  giving  the  above  warning  the  vessel  still  fails  to  obey  the 
order  to  stop,  fire  shall  be  directed  first  at  the  yards  and  then  at  her 
hull. 

Art.  LV.  On  the  vessel's  stopping,  the  captain  of  the  man-of-war 
shall  send  a  boat  to  her  with  a  boarding  officer  and  his  assistant. 

The  crew  of  the  boat  shall  not  wear  arms  but  they  may  be  kept  in 
the  boat. 

When  boarding  the  vessel  the  boarding  officer  may  take  with  him, 
if  he  deems  it  necessary,  not  more  than  two  of  the  boat's  crew. 

Art.  LVI.  The  boarding  officer,  if  he  has  ground  for  suspicion, 
shall  demand  with  proper  courtesy  to  inspect  the  ship's  papers.  When 
the  master  of  the  vessel  refuses  to  produce  them,  the  boarding  officer 
may    insist  upon    it. 

Art.  LVII.  When  the  boarding  officer  deems,  after  inspecting  the 
papers,  that  the  vessel  is  not  to  be  captured,  she  shall  be  released  at 
once  by  order  of  the  captain  of  the  man-of-war. 

Art.  LVIII.  When  the  boarding  officer,  after  inspecting  the  papers, 
deems  the  vessel  to  be  suspicious,  he  shall  search  her. 

In  this  case  he  may,  if  he  deems  it  necessary,  call  the  crew  of  the 
boat  on  board  to  assist,  or  he  may  ask  for  assistance  from  the  ship 
from  which  he  was  sent. 

Art.  LIX.  Search  shall  be  made  together  with  the  master  of  the 
vessel  or  his  representative. 

Art.  LX.  The  boarding  officer  shall  require  the  master  of  the  ves- 
sel or  his  representative  to  open  any  locked  place  or  furniture,  and  if 
the  latter  refuses  to  comply  the  boarding  officer  may  take  steps  re- 
quired  for   the   occasion. 

Art.  LXI.  The  boarding  officer  if  he  finds,  while  making  search, 
that  there  is  no  ground  for  capturing  the  vessel  shall  discontinue  the 
search,  and  the  vessel  shall  be  released  at  once  by  the  order  of  the 
captain  of  the  man-of-war. 

Art.  LXII.  The  boarding  officer,  before  he  leaves  the  vessel,  shall 
ask  the  master  whether  he  has  any  complaint  regarding  the  procedure 
of  visiting  or  searching,  or  any  other  points,  and  if  the  master  makes 
any  complaint  he  shall  request  him  to  produce  them  in  writing. 

Art.  LXIII.  The  boarding  officer  shall  enter  in  the  log-book  of  the 
vessel  when  and  where  the  visit  or  search  was  made,  the  name  of  the 
man-of-war  from  which  he  was  sent,  and  the  name  and  rank  of  her 
captain,  and  shall  sign  his  own  name  and  rank. 

Art.  LXIV.  When  a  vessel  is  to  be  released  on  the  ground  that  she 
has  not  received  notification  of  blockade,  or  as  coming  under  section  2 
of  Art.  XXX.,  or  as  not  knowing  the  outbreak  of  the  war  under  Arts. 
XXXVI.  or  XXXVIII.,  the  boarding  officer  shall  enter  a  warning  ac- 
cording to  Forms  II.  or  III.  in  the  vessel's  log-book  or  upon  the  paper 


786  APPENDIX  V. 


certifying  her  nationality,  and  shall  order  the  vessel  to  retrace  or  to 
change  her  course,  or  take  any  other  proper  measure. 

Art.  LXV.  After  visit  and  search  has  been  made,  if  the  captain  of 
the  man-of-war  still  has  suspicion  of  the  vessel,  he  shall  order  the 
boarding  officer  to  hear  the  explanation  of  her  master,  and  if  after 
these  explanations  there  still  appear  to  be  grounds  for  capturing  her, 
such  vessel  shall  be  captured. 

Art.  LXVI.  In  deciding  whether  a  vessel  is  to  be  captured  or  not, 
the  nature  of  the  vessel,  her  equipments,  cargo,  and  papers,  the  master 
and  crew  and  their  testimony,  etc.,  shall   be  taken  into  consideration. 

Art.  LXVII.  If  the  captain  of  the  man-of-war  decides  to  capture 
a  vessel  he  shall  inform  her  master  of  the  reason,  and  shall  take  pos- 
session of  the  vessel  by  sending  one  officer  and  the  required  number 
of  petty  officers  and  men.  If  on  account  of  bad  weather  or  any  other 
cause  it  is  impossible  to  despatch  these  officers  and  men,  the  captain 
of  the  man-of-war  shall  order  the  vessel  to  haul  down  her  colours  and 
to  steer  according  to  his  direction.  If  the  vessel  does  not  obey  the 
orders  of  the  captain  of  the  man-of-war,  he  may  take  any  measures 
required  for  the  occasion. 

Art.  LXVIII.  When  a  mail  steamer  is  captured,  mail  bags  consid- 
ered to  be  harmless  shall  be  taken  out  of  the  ship  without  breaking  the 
seal,  and  steps  shall  be  taken  quickly  to  send  them  to  their  destination 
at  the  earliest  date. 

Art.  LXIX.  The  captain  of  the  man-of-war  shall  land  at  a  con- 
venient port  when  possible  all  the  passengers  of  a  captured  vessel,  ex- 
cept those  who  are  deemed  to  be  contraband  persons  or  those  who  must 
be  detained  as  witnesses. 

Art.  LXX.  If  the  captain  of  a  man-of-war,  after  capturing  a  ves- 
sel, ascertains  that  the  capture  was  unlawful,  he  shall  instantly  release 
her. 

Art.  LXXI.  The  captain  of  a  man-of-war  shall  cause  due  notes  to 
be  entered  in  the  log-book  of  his  ship  concerning  a  visit,  search,  or 
capture. 

Art.  LXXII.  The  captain  of  a  man-of-war  shall  immediately  sub- 
mit to  the  minister  of  the  navy  detailed  accounts  of  visit,  search,  or 
capture,  with   his  opinions. 

Art.  LXXIII.  When  the  captain  of  a  man-of-war  recaptures  a 
Japanese  or  a  neutral  vessel  captured  by  the  enemy,  he  may  release 
her  if  she  has  not  yet  been  taken  into  an  enemy  port  or  has  not  been 
used  for  military  purposes. 

Chapter  VIII. — Procedure  after  Capture. 

Art.  LXXIV.  When  a  vessel  has  been  taken  possession  of,  the 
captain  of  the  man-of-war  shall  seize  the  documents  concerning  the 
vessel  and  her  cargo  and  all  other  documents  on  board;  arrange,  num- 
ber, and  seal  them;  and  the  master  of  the  vessel  and  the  captain  of  the 
man-of-war  shall  sign  on  them;  and  a  certificate  prepared  according 
to  Form  IV.  shall  be  attached. 

The  certificate  of  the  above  clause  is  generally  made  by  the  officer 
who  received  or  found  the  documents. 

Art.  LXXV.  When  documents  are  found  which  have  been  muti- 
lated or  thrown  away  or  hidden,  the  captain  of  the  man-of-war  shall 
deal  with  them  according  to  the  preceding  article ;  but  in  this  case  the 
certificate  shall  be  according  to  Form  V. 

Art.  LXXVI.  The  captain  of  the  man-of-war  shall  prepare  in 
duplicate  a  certificate  as  to  money,  negotiable  notes,  and  other  valu- 
ables on  board  the  vessel,  and  shall  give  one  copy  to  the  master  of 
the  vessel. 


APPENDIX  V.  787 


Art.  LXXVII.  The  captain  of  the  man-of-war  shall,  so  far  as  pos- 
sible, close  and  seal  the  holds  of  the  captured  vessel  and  shall  take  care 
to  prevent  embezzlement  of  any  cargo,  furniture,  or  any  other  things 
on  board. 

Art.  LXXVIII.  The  captain  and  the  officers  of  the  man-of-war 
shall  treat  with  proper  courtesy  the  master  and  crew  of  the  captured 
vessel  and  those  who  are  to  be  made  prisoners,  and  shall  pay  proper 
attention  to  the  protection  of  their  personal  effects.  Those  who  are 
to  be  made  prisoners  may  be  kept  under  restraint  as  required,  but 
other  persons  on  board  shall  not  be  restrained,  unless  there  is  a  spe- 
cial reason. 

Art.  LXXIX.  The  captain  of  the  man-of-war  shall  send  on  board 
the  captured  vessel  a  prize  officer  and  the  requisite  number  of  petty 
officers  and  men,  and  shall  send  the  vessel  and  her  cargo  to  a  port 
where  there  is  an  Imperial  Prize  Court  or  to  a  Japanese  port  in  the 
neighbourhood  of  such  port. 

Art.  LXXX.  The  captain  of  the  man-of-war  may  request  the  mas- 
ter and  crew  of  the  captured  vessel  to  assist  in  navigating  the  vessel 
under  the  direction  of  the  prize  officer;  and  in  case  such  request  is 
not  complied  with,  he  may  insist  upon  it. 

Art.  LXXXI.  The  captain  of  the  man-of-war  shall  send  into  port 
on  board  the  captured  vessel  the  master  and  crew,  and  all  the  cargo 
and  certificates,  and  the  ship's  papers,  so  far  as  possible  in  the  same 
condition  in  which  they  were  found  at  the  time  of  capture. 

The  captain  of  the  man-of-war,  when  he  thinks  it  necessary,  shall 
send  an  officer  who  can  testify  to  the  circumstances  -of  the  capture. 

Art.  LXXXII.  When  the  captain  of  the  man-of-war  thinks  that  it 
is  not  proper  to  send  in  the  captured  vessel,  the  master,  and  the  whole 
crew,  he  shall  send  at  least  three  or  four  principal  members  of  the 
crew  as  witnesses,  and  two  of  them  shall  be  selected  from  the  master, 
chief  purser,  mates,  and  chief  seaman. 

That  part  of  the  crew  taken  to  another  vessel  shall  be  sent  without 
delay  to  the  port  where  the  captured  vessel  has  been  sent. 

Art.  LXXXIII.  In  the  case  of  the  preceding  article,  the  captain  of 
the  man-of-war  shall  order  the  prize  officer  to  prepare  a  certificate 
according  to  Form  VII.,  stating  that  part  of  the  crew  taken  to  another 
vessel  and  the  reason  for  it. 

Art.  LXXXIV.  When  there  are  among  the  cargo  of  a  captured 
vessel  any  goods  that  putrefy  easily  or  are  not  adapted  for  transporta- 
tion, the  captain  of  the  man-of-war  shall  appoint  a  board  from  among 
the  officers  of  the  ship  who  are  qualified  for  such  work,  and  shall  order 
them  to  submit  a  report. 

The  substance  of  such  investigation  shall  be  entered  in  the  log-book. 

Art.  LXXXV.  When  the  board  reports  that  there  are  among  the 
cargo  goods  that  are  not  adapted  for  transportation,  the  captain  of  the 
man-of-war  shall  sell  such  goods  at  the  nearest  Japanese  port,  or  at  a 
neutral  port,  if  permission  is  obtained  from  the  authorities  of  the 
neutral  State.  Any  goods  that  are  not  salable  may  be  disposed  of  as 
seems  best. 

Art.  LXXXVI.  Before  putting  up  such  goods  for  sale  the  captain 
of  the  man-of-war  shall  select  the  most  competent  appraisers  possible 
and  shall  have  the  whole  of  the  cargo,  or  that  part  of  it  which  is  to  be 
sold,  appraised  in  writing. 

Such  sale,  when  possible,  shall  be  made  by  auction,  in  the  presence 
of  the  prize  officer  and  a  Japanese  consul,  if  convenient,  or  any  other 
Japanese  officer  lying  near  the  place  where  the  sale  is  to  be  made. 

Art.  LXXXVII.  The  captain  of  the  man-of-war  shall  order  the 
prize  officer  to  prepare  a  certificate  according  to  Form  VIII.,  concern- 
ing  the   procedure  of  the  sale,   and   shall   send   the   certificate,    accom- 


788  APPENDIX   V. 


panied  by  the  report  of  the  board  of  survey,  appraisements,  accounts 
of  the  sale,  and  other  documents,  together  with  the  vessel. 

Art.  LXXXVIII.  When  the  captain  of  a  man-of-war  deems  a  cap- 
tured vessel  unfit  to  be  sent  into  port  as  above  prescribed,  he  shall 
appoint  from  among  the  officers  a  competent  board  to  investigate  the 
matter  and  direct  them  to  submit  a  report. 

The  gist  of  their  report  shall  be  entered  in  the  log-book. 

Art.  LXXXIX.  If  the  board  reports  that  the  captured  vessel  is 
unfit  to  be  sent  into  port  as  prescribed,  the  captain  of  the  man-of-war 
shall  send  the  vessel  to  the  nearest  Japanese  port  or  the  nearest  neu- 
tral port,  with  the  consent  of  the  neutral  authorities. 

Art.  XC.  In  the  case  of  the  preceding  article  the  captain  of  the 
man-of-war  shall  order  the  prize  officer  to  prepare  a  certificate  accord- 
ing to  Form  IXV  in  which  the  circumstances  of  sending  the  vessel  to 
the  nearest  Japanese  port  or  to  the  nearest  neutral  port  shall  be  stated 
in  detail,  and  the  captain  shall  order  the  prize  officer  to  send  this 
certificate,  accompanied  by  the  report  of  the  board,  and  the  witnesses, 
ship's  papers,  and  any  other  documents  required  for  judicial  examina- 
tion, to  the  nearest  Imperial  Prize  Court. 

Art.  XCI.  In  the  following  cases,  and  when  it  is  unavoidable,  the 
captain  of  the  man-of-war  may  destroy  a  captured  vessel  or  dispose  of 
her  according  to  the  exigency  of  the  occasion.  But  before  so  destroy- 
ing or  disposing  of  her  he  shall  transship  all  persons  on  board,  and  as 
far  as  possible  the  cargo  also,  and  shall  preserve  the  ship's  papers  and 
all  other  documents  required  for  judicial  examination: 

1.  When  the  captured  vessel  is  in  very  bad  condition,  and  cannot 
be  navigated  on  account  of  the  heavy  sea. 

2.  When  there  is  apprehension  that  the  vessel  may  be  recaptured 
by  the  enemy. 

3.  When  the  man-of-war  cannot  man  the  prize  without  so  reducing 
her  own  complement  as  to  endanger  her  safety. 

Art.  XC1I.  In  the  cases  of  the  above  article  the  captain  of  the 
man-of-war  shall  direct  the  prize  officer  to  prepare  a  certificate  stating 
the  circumstances  of  inability  to  send  in  the  prize  and  the  details  of 
her  disposal,  and  to  send  it  to  the  nearest  Prize  Court,  together  with 
persons  and  cargo  removed  from  the  vessel,  the  ship's  papers,  and  all 
other   documents    required   for   judicial    examination. 

Art.  XCIII.  A  prize  officer,  when  ordered  to  take  possession  of  a 
captured  vessel,  shall  prepare  an  inventory  according  to  Form  X.  of 
the  stores,  furniture,  and  cargo,  so  far  as  it  can  be  ascertained  with- 
out disturbing  the  stowage.  In  preparing  this  inventory  the  prize  offi- 
cer may  request  assistance  of  the  master  of  the  vessel,  and  shall  give 
him  a  copy  of  the  inventory  signed  by  himself. 

Art.  XCIV".  The  prize  officer  shall  keep  a  journal  in  which  he  shall 
enter  events  concerning  the  vessel,  cargo,  and  persons  on   board. 

Art.  XCV.  When  a  prize  officer,  while  in  charge  of  a  captured  ves- 
sel, receives  any  new  documents  or  finds  or  picks  up  those  mutilated 
or  thrown  away  or  hidden,  he  shall  put  them  in  order,  number  them, 
and  affix  to  theni  a  certificate  prepared  according  to   Form  XI. 

Art.  XCVI.  The  prize  officer  shall  pay  the  greatest  attention  to 
navigating  captured  vessel,  and  shall  endeavour  not  to  cause  any  dam- 
age to  the  vessel  or  her  cargo. 

Art.  XCVII.  The  prize  officer  may  land  or  transship  the  persons 
and  cargo  on  board  the  captured  vessel,  but  only  in  case  of  pressing 
necessity.  In  this  case  he  shall  prepare  a  certificate  according  to  Form 
XII.,  stating  the  persons  and  goods  landed  or  transshipped  and  the 
reason  for  such  action.  The  persons  and  goods  landed  or  transshipped 
shall  be  sent  without  delay  by  the  most  convenient  means  to  the  Im- 
perial Prize  Court. 


APPENDIX   V.  V89 


Art.  XCVIII.  The  prize  officer,  when  he  arrives  at  the  place  of 
destination,  shall  deliver  the  captured  vessel  to  the  Prize  Court  and 
shall  make   a   request  for  examination. 


FORMS. 
Form  I.     (Referred  to  in  Art.  XLVII.) 

DECLARATION  OF  RLOCKADE. 

I  hereby  declare  that  on  the  ....  day  of last  the ,  from 

,   in   latitude    ,   longitude    ,   to    ,    in    latitude 

,  longitude ,  were  placed  in  a  state  of  blockade  by  a  com- 
petent force  of  His  Imperial  Japanese  Majesty's  ships,  and  are  now  in 
such  state  of  blockade;  and  that  all  measures  authorised  by  the  law 
of  nations  and  the  respective  treaties  between  the  Empire  of  Japan  and 
the  different  neutral  powers  will  be  enforced  on  behalf  of  His  Imperial 
Japanese  Majesty's  Government  against  all  vessels  which  may  attempt 
to  violate  the  blockade. 

Given   on   board    His    Imperial    Japanese   Majesty's   ship    at 

this    day  of   ,  19 .  . . 

(Signed)      , 

Commander-in-Chief  (Admiral  in  Command)   of Squadron. 


Form  II.     (Referred  to  in  Art.  LXIV.) 

WARNING   OF   BLOCKADE. 

I  have  visited  the    vessel,  the    ,  this  day  by  the  order 

of  Captain ,  of  His  Imperial  Japanese  Majesty's  ship, ,  and 

warned  that ,  from   ,  in  latitude ,  longitude    . , 

to   ,  in  latitude ,  longitude ,  is  under  blockade. 

Dated  this    day  of    ,   190... 

Latitude   ,  longitude    


His  Imperial  Japanese  Majesty's  Ship 


Form  III.     (Referred  to  in  Art.  LXIV.) 

WARNING    OF    HOSTILITIES. 

I  have  visited  the    vessel,  the    ,  this  day  by  the  order 

of  Captain   ,  of  His  Imperial  Majesty's  ship and  warned 

that  the  state  of  war  has  existed  and  exists  between  the  Empire  of 
Japan  and  the  Empire  of   

Dated  this    ....    day  of   ,  190. .. 

Latitude    .......  longitude    


His  Imperial  Japanese  Majesty's  Ship 


Form  IV.      (Referred  to  in  Art.  LXXIV.) 

CERTIFICATE      CONCERNING     SHIP'S     PAPERS      RECEIVED     AT     THE     TIME     OF 
THE     CAPTURE     OF     THE     VESSEL. 

Name  of  the  vessel   Name  of  the  master   I  hereby 

certify : 


790  APPENDIX   V. 


1.  That  I  was  present  when  His  Imperial  Japanese  Majesty's  ship 

captured  the  above-mentioned  vessel  on  the    ....   day  of , 

190... 

2.  That  the  documents  attached,  that  is,  from  No to  No 

are  all   the  papers  found  on  board  and  received  at  the  time   of  the 
capture. 

3.  That  they  are  exactly  in  the  same  condition  in  which  they  were 
received,  and  no  change  has  been  made  except  that  they  received  their 
numbers. 

Dated  this    day  of    ,   190 .. . 


His  Imperial  Majesty's  Ship 


Form  V.     (Referred  to  in  Art.  LXXV.) 

CERTIFICATE     CONCERNING     PAPERS     THROWN     AWAY      (MUTILATED     OR 
THROWN  AWAY  OR  HIDDEN )    AT  THE  TIME  OF  THE  CAPTURE. 

Name  of  the  vessel   Name  of  the  master   I  hereby 

certify : 

1.  That  I  was  present  when  His  Imperial  Japanese  Majesty's  ship 

captured  the  above-mentioned  vessel  on  the day  of , 

190... 

2.  That    ....    minutes  before  the  capture    (or    ),   I  actually 

saw  at  such  and  such  place  ....  bundles  of  papers  thrown  away  from 
a  porthole  of  the  above-mentioned  vessel ;  I  lowered  the  boat  instantly ; 
and  the  boat's  crew  picked  up  ....  bundles  of  the  papers,  the  other 
having  gone  to  the  bottom  (in  case  papers  are  mutilated  or  hidden, 
state  the  circumstances). 

3.  That  the  papers  attached,  that  is,  from  No.   1  to  No are 

all  the  documents  picked  up  at  that  time,  and  except  they  received  their 
numbers  they  are  in  the  same  condition  in  which  they  were  found,  and 
no   change   has   been   made   in  them. 

Dated  this   ....   day  of ,  19. .. 


His  Imperial  Majesty's  Ship 


Form  VI.      (Referred  to  in  Art.  LXXVI.) 

CERTIFICATE   AS    TO    MONEY   AND   VALUAELES    FOUND  ON   BOARD   THE   PRIZE. 

The    ,  master. 

I,   the   undersigned,   holding   the    rank   of    in    His    Imperial 

Japanese    Majesty's     navy    and    commanding    his     Imperial    Japanese 

Majesty's  ship ,  do  hereby  certify  that  the  following  is  a  correct 

account  of  all  moneys  and  valuables  found  on  board  the  above-named 

vessel    detained  by  me  as  lawful  prize  of  war  on  the    ....    day 

of    ,    19... 

(Here  state  the   several  articles,  distinguishing  whether  they  were 
voluntarily  given  up  or  were  found  concealed,  and  where.) 

Commanding  His  Imperial  Japanese  Majesty's  Ship. 

Note. — I  do  hereby  declare  that  on  the   ....   day  of ,  19.  .,  I 

delivered  a  copy,  signed  by  myself,  of  the  above  certificate  to  the  mas- 
ter of  the  and  that  


APPENDIX  V.  791 


(Here  state  whether  or  not  the  master  made  any  objection,  and  if 
he  did,  what  the  nature  of  the  objection  was.) 
Signed  this day  of  ,  190.  . . 


Commanding  His  Imperial  Japanese  Majesty's  ship    

(A  copy  of  this   certificate  must   in  all   cases  be  delivered  to  the 
master. ) 


Fobm  VII.      (Referred  to  in  Art.  LXXXIII.) 

CERTIFICATE    TO    BE     ISSUED     WHEN    THE     CAPTAIN     OF     THE     MAN-OF-WAR 
TRANSSHIPPED  THE  CREW  OF  A  CAPTURED  VESSEL  TO  ANOTHER  VESSEL. 

The  ,  master. 

I  hereby  certify, 

1.  That  Captain    ,  of  His  Imperial  Japanese  Majesty's  ship 

,   has   captured   the  above-mentioned  vessel  on   the    ....    day  of 

,   19 .  . ,  in  longitude    ,  latitude    

2.  That  on  the    ....   day  of   ,   19.  .,  the  said  Captain    

had  transshipped    of  the  crew  before  he  sent  the  vessel  to  port 

where  there  is  a  Prize  Court. 

3.  That  the  reasons  for  such  transshipment  of  the  crew  are 

Dated  this   ....   day  of ,  19. .. 


His  Imperial  Japanese  Majesty's  ship   ,  Prize  Officer. 


Form  VIII.      (Referred  to  in  Art.  LXXXVII.) 

CERTIFICATE    CONCERNING    SALE   OF    CARGO. 

The   ,  master. 

I  hereby  certify, 

1.  That  Captain   ,  of  His  Imperial  Japanese  Majesty's  ship 

,  has   captured   the  above-mentioned  vessel  on   the    ....    day  of 

,  19 . . ,  in  longitude   ,  latitude    

2.  That  on  the   ....   day  of   ,  19. .,  the  captain  ordered  the 

survey  of  the  cargo. 

3.  That  the  document    (A)    annexed  is  the  report  of  the  board  of 
survey. 

4.  That  as  the  result  of  the  survey  the  captain  ordered  me  to  take 
the  vessel  to port  at  once  and  to  sell  the  cargo. 

5.  That  on  the  ....  day  of ,  19.  .,  I  transported  the  cargo  to 

the  above-mentioned  port  and  ordered and ,  who  are  most 

skilful  appraisers,  to  appraise  the  goods. 

6.  That  before  appraising  the  above  mentioned    and    

swore    that    they   would    discharge    their    duties    impartially,    and    the 
document   (B)   annexed  are  their  written  oath. 

7.  That  the  documents   (C)  annexed  are  the  appraisement  of 

and    

8.  That  on  the   ....   day  of   ,  19.  .,  I  gave  order  to  sell  the 

goods  by  auction,  and  the  document   (D)  annexed  is  the  advertisement 
made  at   

9.  That  on  the    ....    day  of    ,    19..,  the  auction   advertised 

was  held,  and  I    (Japanese  consul,  or  Japanese  officer  residing  in  the 


792  APPENDIX   V. 

neighbourhood  of  the  place  where  the  sale  was  made)   was  present  and 
witnessed  the  sale. 

10.  That  the  document    (E)    annexed  is  the  account  of  sale  given 
me  by ,  the  goods  having  been  sold  to 

11.  That  on  the   ....    day  of   ,  19..,  I  have  turned  over  to 

the  sum  of  yen ,  mentioned  in  the  accounts  of  sale. 

Dated  this    ....   day  of   ,  19 . . . 

His  Imperial  Japanese  Majesty's  ship   ,  Prize  Officer. 


Form  IX.      (Referred  to  in  Art.  XC.) 

CERTIFICATE    TO    BE    ISSUED    WHEN    A    CAPTURED    VESSEL    IS    SENT    TO    A 
NEUTRAL   PORT     (THE    NEAREST   JAPANESE   PORT). 

The    ,  master. 

I  hereby  certify, 

1.  That  Captain    ,  of  His  Imperial  Japanese  Majesty's  ship 

,   has  captured   the   above-mentioned   vessel   on  the    ....    day   of 

,  19.  .,  in  longitude   ,  latitude   

2.  That  on  the   ....   day  of ,   19.  .,  the  said  captain  ordered 

survey  of  the  vessel. 

3.  That  the  document   (A)   annexed  is  the  report  of  the  board  of 
survey. 

4.  That  as  the  result  of  the  survey  the  captain  ordered  me  to  navi- 
gate the  vessel  to   

5.  That   in  accordance  with  the  above  order  I   reached    on 

the  ....  day  of   ,  19. .,  and  turned  over  the  vessel  to  

Dated  this    ....   day  of   ,  19... 


His  Imperial  Japanese  Majesty's  Ship ,  Prize  Officer. 


Form  X.     (Referred  to  in  Art.  XCIII.) 

INVENTORY  OF   THE   STORES,   FURNITURE,   AND   CARGO   OF   THE   PRIZE. 

The ,  master. 

I,    ,  holding  the   rank  of    in   His   Imperial   Japanese 

Majesty's  navy,  and  the  prize  officer  in  charge  of  the  above-named  ves- 
sel, do  hereby  certify  that  the  following  is  a  correct  inventory  of  the 
stores,  furniture,  and  cargo  of  the  said  vessel,  so  far  as  the  said  can 
be  ascertained  without  disturbing  the  stowage    

Signed  this day  of .,  19. .. 


Note. — I  do  hereby  declare  that  on  the    day  of   ,  19.  ., 

I   delivered   a   copy,   signed  by  myself,   of  the   above   inventory   to   the 

master  of  the    ,  and  that    ( Here  state  whether  or  not 

the  master  made  any  objection,  and,  if  he  did,  what  the  nature  of  the 
objection  was.) 

Signed  this day  of ,  19. .. 


(A  copy  of  this  inventory  must  be  delivered  to  the  master.) 


APPENDIX  V.  793 


Form  XI.      (Referred  to  in  Art.  XCV.) 

CERTIFICATE      CONCERNING      SHIP'S     PAPERS      RECEIVED       (MUTILATED      AND 
THROWN   AWAY  OR  HIDDEN)    DURING  THE  VOYAGE. 

The    ,  master. 

I  hereby  certify: 

1.  That  on  the  ....  day  of ,  19.  .,  I  was  ordered  to  navigate 

the  above-mentioned  vessel  to for  adjudication. 

2.  That  during  the  voyage,  on  the  ....  day  of  ,  19.  .,  I  re- 
ceived from  the  master  ot  the  vessel  the  documents  annexed — that  is, 

from  No.    1   to  No ( Here  circumstances   to   be  noted,   if  any. 

Same  in  the   case  of  mutilation  or   concealment.) 

3.  That  the  above-mentioned  documents  are  all  the  papers  I  have 
received,  and  they  are  in  the  same  condition  as  when  received  and  no 
change  has  been  made  in  them,  except  that  I  numbered  them. 

Dated  this    day  of    ,   19... 


His  Imperial  Japanese  Majesty's  Ship ,  Prize  Officer. 


Form  XII.      (Referred  to  in  Art.  XCVII.) 

CERTIFICATE  TO  BE  ISSUED  WHEN  THE  CREW  OR  CARGO  OF  A  CAPTURED 
VESSEL  IS  LANDED. 

The   ,  master. 

I  hereby  certify: 

1.  That  on  the   ....  day  of ,  19.  .,  I  received  orders  to  navi- 
gate the  above-mentioned  vessel  to   for  adjudication. 

2.  That  during  the  voyage  I  landed  (transshipped)  from  the  vessel 
the  following: 

|  Goods  or  persons  landed    ( transshipped )    and  the  place 

f      where  landed. 

3.  That  the   reasons  for  landing  or  transshipping  are    

Dated  this    day  of   ,  19... 

His  Imperial  Japanese  Majesty's  Ship ,  Prize  Officer. 


794 


APPENDIX   VI. 


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INDEX. 


Administration  of 

Manchuria,  252 

Sakhalin,  225 
Advertisement  of  vessels  and  car- 
goes, 567 
Affair 

The  Askold,  429 

The  Daijin  Maru,  337 

The  Independent,  354 

The  Mandjur,  418 

The  Ratstoropny,  444 
Aggi,  Case  of  the,  750 
American  protection 

of  Japanese,  42 

Trading  Company,  267 
Aphrodite,  Case  of  the,  651 
Armistice 

of  Manchuria,  219 

Naval  protocol  of,  222 

in  North  Korea,  224 

at  Port  Arthur,  221 

Protocol  of,  218 
Arrete  de  Napoleon,  26 
Arufrid 

Release  of,  754 
Arugun 

Case  of  the,  625 
Asylum 

Lunatic,  246 
Australia 

Case  of  the,  625 

Bawtry,  Case  of  the,  659 
Barracouta,  Release  of  the,  754 
Belligerents  in 

neutral  ports,  459 
Blockade 

General  statement  of,  359 


Blockade 

Hospital  liner  to  the  ports  under, 
370 

Medical  staffs  to  the  ports  under, 
361 

Observation  on,  373 

runners,  371 
Board  of  Trade,  2 
Bobrick,  Case  of  the,  580 
Bombardment  of 

Hospital,  195 

Kaiping,  etc.,  408 

Sea  Coasts,  407 

San-shan,  411 
Booty  in 

Manchuria,  260 

Port  Arthur,  218 
Bureau  of  Information  for  prisoners 

History  of,  114 

Rolin's  remark  on,  115 

Capture  made  before  the  war,  582 
Capitulation  of  Port  Arthur,  209 
Case 

The  Crusader,  356 

The  Eastry,  358 

The  Industrie,  397 

number  of,  tried  before  Japanese 
Prize  Courts,  539 

Procedure  of,  565 

The  Prometheus,  340 

Reception  of,  565 

(as  to  cases  brought  before 
Japanese  Prize  Courts,  see 
contents)  , 

Catholic 

Protection  of,  by  Japan,  38 
Centennial,  Case  of  the,  754 


801 


802 


INDEX. 


Chemulpo  incident,  462 
Chinese  costumes,  wearing  of, 

by  Russians,  174 
Churches,  Protection  of,  38 
Claims  for  damages,  355 
Combatants 

General  statement  of,  89 

Hague  convention  relating  to,  89 

Irregular,  180 

Japanese  principles  on,  90 

Russian  principle,  92 
Contraband  of  war 

General  statement,  491 

Bean  cake  as,  515 

Cotton  as,  524 

Goods  as,  652 

Japanese  attitude  on,  491 

Kerosene  oil.  523 

Persons  as,  467,  639 

Rice  as,  340,  520 

Russian  attitude  on,  496 

Tea  as,  520 
Convicts  in  Sakhalin,  236 
Correspondents  and  correspondents' 

ship,  386-406 
Crews 

Examination  of,  566 

Hague  Convention  on,  140 

The  Lena's,  482 

Release  of,  139,  568 

Days  of  Grace 

American  practice  on,  61 

Author's  view  on,  65 

Hague  Convention    relating    to, 
63 

Japanese  ordinance,  64 

Lawrence  on,  65 

Scott's  view  on,  64 

of  enemy  subjects,  25-38 

of  enemy  vessels,  6-69 
Decisions  of  Prize  Courts  (see  con- 
tents of  Part  V) 
Declaration  of  War 

Hostilities  without,  3-5 

Japanese,  6 

Russian,  7 


Diary  of  the  Russo-Japanese  war, 

761 
Dollar,  Case    of    the    M.   S.t  562, 

664 
Dumdum  bullets 

use  of,  by  Russians,  173,  179 

Eastern  Railroad  Company 

Nature  of,  575 
Eastry,  Case  of  the,  738 
Ekaterinoslav,  Case  of  the,  23,  582 
Enemy 

Trading  with,  82 

Means  of  injuring,  155 

vessels,  573 
Execution  of  decision  of 

Prize  Courts,  571 
Exile 

Political,  234 

Fee  and  stamps  for 

prize  procedure,  571 
Foreigners  and  war  taxes,  70 
Forests  in  Sakhalin,  240 
Franco-Prussian  War,  28 

Geneva  Convention,  134 
George,  The  case  of  the,  710 
Grotius,  2 
Gustavus  Adolphus,  2 

Hague  Convention 

Application  of  Art.  LVI  of,  244 

on  bombardment,  413 

on  relations  to  combatants,  89 

on  days  of  grace,  63 

on  prisoners  and  religion,  146 

on  wills  of  prisoners,  135 
Hans    Wagner,    The   case   of    the, 

754 
Helmes,  Case  of  the,  752 
Henry  Bolckow,  Case  of,  671 
Hostile  employment 

of  vessels,  625 
Hospital 

Countess  Schouvaloff ,  265 

Field,  135,  166 


INDEX. 


803 


Hospital 

Floating,  375 

Military,  133 

Naval,  133 

Protection  of  Charity,  245 

Red  Cross,  195 

in  Manchuria,  263 
Hsiping,  Case  of  the,  745 

Incident 

Chemulpo,  462 

Daijin  Maru,  337 

Okinoshima,  292 

bearing  on  Prize  Law,  337 
Industrie,  Case  of  the,  733 
Inspection  of  goods,  567 

letters,  568 

Japanese  attitude 

on  contrabands,  490 

towards  Russians  in  Japan,  29 
Juriady,  Case  of,  591 

King  Arthur,  Case  of  the,  721 
Korean  neutrality,  575 
Kotic,  Case  of  the,  503 
Kow-loon,  Release  of  the,  754 

Laws  and  customs  of 

land  warfare,  89 

naval  warfare,  275 
Lydia,  Case  of  the,  674 

Mail  steamer,  571-580 

Manchuria 

Administration  of,  252 
Case  of  the,  544,  551,  596 
Citizens  of  third  Powers  in,  226 
Historical  and  religious  buildings 

in,  263 
Hospitals  in,  263 
Occupation  of,  250 
Requisition  and  booty  in,  260 
Speech  by  Baron  Komura,  756 

Mandjur,  The  affairs  of,  418 

Manifesto,  The  Russian,  9 

Means  of  injuring  enemy,  155 


Memorandum  of 

Japanese  Government  concerning 

the  Ryeshitelni,  44 
Japanese  prisoners  in  Russia,  96 
seven  professors,  759 
Montara,  The  case  of  the,  633* 
Mukden,  Case  of  the,  541,  543,  559, 

563,  598 
Museums  in  Sakhalin,  248 

Nadajda,  Case  of  the,  604 
Napoleon,  arrete  de,  26 
Neutrality,  417 
Neutral  ports 

Belligerents  in,  259 

Warships  in,  417 
Nigretia,   Case   of    the,    467,   551, 

640 
Non-combatants 

Delivery  of,  140 

in  Port  Arthur,  203 

Occupation  of 

Manchuria,  250 

Sakhalin,  225 
Orphanage 

Protection  of,  224 
Outbreak  of  war 

Author's  view  on,  14 

Opinion  of  Prof.  Westlake  on,  6 

Roman  practice  on,  1 

Russian  protest  on,  9 

The   Second   Hague   Convention 
on,  5 

Parole,  Breach  of,  467 

Peiping,  Case  of  the,  749 

Petition 

by    an    attorney    other    than    a 

Japanese,  543 
in  foreign  languages,  562 
by  a  party  not  in  interest,  540 
for  release  of  vessels,  557 
by  telegraph,  544 
for  temporary  attachment  of  a 
prize,  559 

Petroleum  oil  in  Sakhalin,  242 


804 


INDEX. 


Priests  in  Sakhalin,  238 

Principles  of  Japanese  Prize  Courts, 

543 
Prison  Barracks 

General  statement  of,  113 

Table  of,  114 
Prisoners  of  war 

Crew  of  merchantmen  as,  138 

Bureau  of  information  of,  114 

Delivery  of,  142 

Labour  of,  124 

Memorandum  made  by  Japanese, 
96 

Offence  of,  142 

Parole  of  Russians,  107 

Relation  between  labour  and  sup- 
port, 126 

Religion  of,  146 

Report  of  Mr.  Smith  on  Japanese, 
95 

Sick  and  wounded,  132 

Support  and  pay  for,  123 

Table  of  the  offence  of,  131 

Table  of,  in  private  houses,  108 

Treatment  of,  in  Japan,  94 

Treatment  of,  in  Russia,  102 

Wearing  swords  by,  128 
Prize  Courts 

Organisation  of,  526 
Prohibition  of  export,  82 
Property 

Protection  of  enemy's,  27 

Russian  soldiers',  118 

State  and  private,  239 
Protection  of 

Catholics,  38 

Citizens  of  third  Powers,  245 

Enemy's  property,  27 

Japanese  by  the  United  States, 
42 

Quang-nam,  The  case  of  the,  735 

Red  Cross  Flag 
Abuse  of,  180 
Firing  on,  155 
Hospital,  195 


Regulations  for 

booty,  261 

captures  at  sea,  778 

clearing     a    field     after     battle, 
152 

crews,  141 

destruction   of   vessels    (Japan), 
334 

destruction  of  vessels  (Russian), 
334 

naval  war  correspondents,  395 

Prisoners'  free  walking,  104 

private  shops,  234 

war  correspondents,  303 
Religion  and  prisoners,  146 
Released  vessels,  by 

decisions,  739 

special  favour,  753 
Requisition  in  Manchuria,  260 
Resnick,  Case  of  the,  540 
Rincluden,  Case  of  the,  741 
Russia,  Case  of  the,  557 
Russian 

attitude  towards  Japanese,  33 

principle  concerning  contraband, 
495 

outrages,  169 

warships  at  Batavia,  459 

warships  at  Chefoo,  438 

warships  at  Kiaochow,  447 

warships  at  Manila,  452 

warships  at  Saigon,  453 

warships  at  San  Francisco,  455 

warships  at  Shanghai,  418     ' 
Ryeshitelni,  Case  of  the,  438 

Sado  Maru,  The  incident  of    the, 

292 
Sakhalin,  The  occupation  of,  225 
Sale  of 

vessels,  495 

war  vessels,  487 
Saxon  Prince,  Case  of  the,  747 
School  in  Sakhalin,  248 
Scotsman,  Case  of  the,  682 
Severus,  Case  of  the,  692 
Shishan,  Case  of  the,  742 


INDEX. 


805 


Sick  and  wounded,  132 
Sinking  of  the 

merchantmen,  author's  observa- 
tion on,  331 

Goyo  Maru,  287 

Haginoura  Maru,  287 

Han-yei  Maru,  301 

Hipsang,  321 

Hitatchi,  292 

Ikona,  325 

Jizai  and  the  Takashima,  296 

Kinshiu,  289 

Kei-sho,  300 

Knight  Commander,  310 

Nakonoura  Maru,  284 

Old  Hamia,  326 

£*.  Xitaa,  324 

Thea,  321 
Spy 

Chinese,  187 

Russian,  185 
Statute  of  Staples,  26 
Stuve,  The  release  of  the,  754 
Surrender  of 

Port  Arthur,  209 

Sakhalin,  227 
Suyematsu,  on  the  treatment  of  the 
killed,  148 

Tacoma,  Case  of  the,  694 
Thalia,  Case  of  the,  605 
Trading  with  enemy,  82 
Treaty  of 

1795,  27 

peace,  774 


Treatment  of 

the  killed,  148 

prisoners,  94 

population  of  occupied  territory, 
231 
Trial  of  prize  cases,  570 

Uniform  of  combatants,  176 
United  States,  Protection  of  Japa- 
nese, 42 
Un-neutral  services,  733 

Vegga,  Case  of  the,  703 
Vessels 

captured  by  the  Japanese  navy, 
537 

employed  by  enemy,  625 

Sale  of,  485 
Veteran,  Case  of  the,  714 
Vickers,  Prof.,  on  war  taxes,  75 
Volunteer,  Fleet  Company,  582 

War 

correspondents,  386 
opens    when     intention     is    ex- 
pressed, 571,  580 
opens  by  declaration,  582 
State  of,  571-580 
taxes,  70 
Westlake,  Prof.,  on  The  Hague  Con- 
vention, 6,  330,  385,  414 
Wills  of  prisoners,  135 
Withdrawal     of     Japanese     from 

Russia,  33 
Wounded,  Sick  and,  132 


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